How to challenge an unreasonable refusal to hire? Reasons why an employer may refuse to provide leave

In accordance with the Labor Code of the Russian Federation, upon conclusion employment contract a person applying for a job that requires special knowledge or special training is required to present to the employer a document on education and (or) qualifications or availability of special knowledge.
If an applicant does not provide supporting documents when concluding an employment contract, the employer has the right to refuse to hire him. According to part two of Art. 3, part two of the Labor Code of the Russian Federation, it is permitted to refuse employment due to circumstances related to the employee’s business qualities, which, in turn, mean the employee’s personal qualities (for example, having a certain level of education, work experience in a given specialty, in a given industry ) (resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Russian Federation”).
For some categories of workers, the need to meet a certain educational qualification is established at the legislative level. In cases where the educational requirements for an employee are not defined by law, the employer has the right to establish them independently (Supreme Court of the Komi Republic dated July 2, 2015 N 33-3146/2015, determination of the Novgorod Regional Court dated August 7, 2013 N 33-1315/2013, determination Supreme Court of the Republic of Karelia dated 09/04/2012 N 33-2652/2012, determination of the Samara Regional Court dated 11/21/2011 N 33-12150). Consequently, if an employee’s education does not meet the requirements established by law or the employer, he may be refused employment.
In the situation under consideration, the requirements for employee education are not established at the legislative level. The employer's job description establishes a requirement that the employee have a higher education
By virtue of Federal Law dated December 29, 2012 N 273-FZ “On education in Russian Federation" (hereinafter - Law N 273-FZ), the acquisition of higher education should be considered the mastery of educational programs of higher education by students - bachelor's programs, specialty programs, master's programs, programs for training scientific and pedagogical personnel in graduate school (adjunct), residency programs, assistantship programs - internships. State accreditation of the educational program of higher education confirms that the quality of student training at the university meets state requirements.
According to Law N 273-FZ, the final certification, which completes the mastery of basic educational programs that have state accreditation, is a state final certification, which is carried out in order to determine the compliance of the results of students' mastery of basic educational programs with the relevant requirements of the federal state educational standard or educational standard. Those who have successfully passed the state final certification upon completion of the higher education program are issued documents on education and documents on education and qualifications of a sample, samples of which are established by the federal body executive power, performing the functions of producing public policy and legal regulation in the field of education (Part 4 of Article 60 of the Law). At the same time, N 273-FZ allows that upon completion of mastering basic professional educational programs, final certification may be carried out in the manner and form that are established educational organization. Persons who successfully pass the final certification are issued documents on education and (or) qualifications, samples of which are independently established by organizations carrying out educational activities(Part 3 of Article 60 of the Law).
Thus, despite the fact that the university does not have state accreditation for the educational program of higher education, a person who has mastered this program is also considered a person who has received a higher education. Indirectly, the legitimacy of this conclusion is confirmed by the Ministry of Education and Science of the Russian Federation dated 06/01/2015 N AK-1483/05 “On the issuance of documents on higher education”.
Due to the fact that in the case under consideration, among the educational requirements for an employee, there is no mention of the need for him to have a higher education obtained in accordance with federal state educational standards, the employer, in our opinion, does not have the right to refuse to hire an applicant who has presented a document confirming his completion of an educational program of higher education, only on the grounds that the university that issued this document was not accredited for this program.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Lozhechnikova Elena

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Komarova Victoria

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

In accordance with the requirements of current legislation, every worker must have the opportunity to rest. There are certain time periods for this. One of them is annual paid leave. But sometimes situations arise when the employer can refuse leave.

Annual leave is provided to all employees, regardless of the form of ownership of the company, the position held by the person and the specifics professional activity.

The responsibility to provide the worker with a break for rest and recovery once a year rests with the manager. This rule is specified not only in general regulations, but also in the text of the employment contract. During the vacation, the person retains workplace and wages.

The duration of the specified period is twenty-eight actual days. This is the minimum duration of vacation. For some categories of employees, additional paid days are provided. This approach is due to the presence of harmful and dangerous factors in work, as well as the specifics of professional activity, for example, work in the Far North, in hazardous industries, teaching activities, and limited physical capabilities.

It should be noted that in most cases the manager is obliged to let the employee go on vacation. The basis for this is an order of appropriate content.

Terms of service

In accordance with the requirements of current legislation, a break for rest and recovery is provided to the employee every year. But this rule has a peculiarity, which lies in the duration of a person’s work in the organization. The manager must allow the employee to go on another vacation only if the period of work in the company is at least six months. Only after six months of work can a person apply for a rest break.

By agreement of the parties, the worker may temporarily interrupt his work even before the expiration of six months. Leave for the second and subsequent working years is provided to the employee in accordance with the priority schedule approved by the head of the organization.

Some employees must be granted leave by their boss even if their period of employment is less than six months.

These include:

1. Women before the birth of a child or immediately after the birth of a baby.
2. Those who are under eighteen years of age.
3. Persons who have taken custody of a child or children under three months of age.

It is impossible to refuse to provide leave to such workers.

Does the employer have the right to refuse

Current legislation directly states that workers must be given leave annually. Even referring to production necessity, one cannot refuse to provide a person with rest. This requires his personal consent. This rule does not apply to the case of dismissal, that is, a person can use the break assigned to him as intended before leaving, only in agreement with management.

However, there are situations when a manager may still refuse an employee’s request for paid time off.

An employer may not allow a worker to go on vacation in the following cases:

1. The person has worked for the organization for less than six months, provided that he is not included in the preferential categories.
2. The employee wishes to temporarily interrupt his activities in violation of the approved priority schedule.
3. The worker wants to use the period for rest and then leave the organization. In this case, the employer's consent will be required.
4. The absence of a specialist can negatively affect the company’s activities as a whole. This is only possible with the consent of the employee.

The main evaluation criterion is the total duration of a person’s work in the organization.

Leave without pay

According to the rules of the current regulations, in addition to the main paid leave, the employee may be provided with additional rest without saving earnings. The duration of the period is determined by mutual agreement between the parties to the labor relationship. In most cases, people use such breaks to resolve personal issues.

Terms of service

To realize his intention to use leave without saving earnings, a person must have valid reasons of a personal or family nature. A clear list of such circumstances in force regulations not installed. Everything is decided individually based on the specifics of the current situation.

The worker must send a corresponding statement to his supervisor. It would be correct to attach documents to the application that confirm the need for the manager to give the person such a break.

Is refusal possible?

In accordance with current regulations, granting leave without pay is a right and not an obligation of the boss. That is, any manager can refuse a worker’s request.

At the same time, the legislation defines the categories of people to whom the employer is obliged to give this type of leave.

These include:

1. Those who took part in the Great Patriotic War. They can use up to thirty-five days a year.
2. Persons who have the right to retire but continue to work. They are entitled to up to fourteen days throughout the year.
3. Parents and spouses of military personnel, law enforcement and rescue personnel who passed away while performing their duties, or died due to injury or occupational disease. This category is entitled to fourteen days a year.
4. For workers with disabilities – up to sixty days during the year.
5. Employees have up to five days in the event of marriage, the birth of a baby, or the death of a close relative.

This list is not exhaustive. Collective agreement other circumstances can be established that will allow a person to take leave at his own expense.

Maternity leave

According to the norms of the Labor Code of the Russian Federation, an employee can go on so-called maternity leave.

This situation is associated with the birth of a child and subsequent care for him. The manager is obliged to provide leave of this kind regardless of the length of time the person has worked in the organization.

To do this, the expectant mother must send a written request to her manager and attach a medical report to it, which will confirm the woman’s situation. The duration of this period is:

1. Before the birth of the baby - seventy days, if two or more babies are born - eighty-four.
2. After the birth of a child - seventy days, if the birth took place with complications - eighty-six days, if two or more offspring are born - one hundred days.

The duration of such a break is calculated in total, regardless of how many days the woman used before the birth of the baby. The mother in labor is required to receive financial assistance.

Can they be denied leave before maternity leave?

In accordance with current legislation, the manager is obliged to allow the woman to go on basic leave before the birth of the baby or immediately after childbirth. Duration of work in the company in in this case does not matter, that is, the boss is obliged to sign the leave application for the expectant mother. This is an unconditional rule that must be followed in any case.

Does an employer have the right to refuse maternity leave?

An employee has every right to go on maternity leave regardless of the boss’s intentions. This rule is unconditional. In this case, we mean not only a temporary interruption of one’s activities in connection with the anticipation of the birth of a child, but also the postpartum period and leave to care for the baby until it reaches a certain age.

Study leaves

Study leave is used at the beginning of the next session. This break is used by those who work and at the same time undergo training at an educational institution. Additional profession a person can receive either at the direction of the organization or at his own request.

Student leave is granted to the following categories of workers:

1. Those receiving higher education. Such students are provided with up to fifty days a year.
2. Students in a secondary specialized educational institution. These students are entitled to up to forty days a year.
3. Those undergoing training in general educational institutions. In this case, the duration of the vacation reaches twenty-two days.

It should be noted that the provision of such leaves is guaranteed to students by law.

Terms of service

In order to realize the possibility of leaving for the next session, the student must send a written application to his supervisor, which must indicate the number of days required to pass the next block of exams and tests.

A letter of invitation from the educational institution must be attached to the application. It is this document that is the basis for granting leave. Otherwise, the manager has every right not to let the employee go to the session.

Where to go in case of wrongful refusal

If a person is not allowed to go on vacation, he should complain to the authorized authorities. This should only be done if the employee is sure that he has the right to temporarily interrupt his work and go on vacation.

A worker can apply for protection of his rights to the following organizations:

1. Trade union committee, if one has been created in the organization.
2. Labor Dispute Commission.
3. Labor Inspectorate.

The procedure for applying in this case is the same. A person simply needs to send a written application to the appropriate authority and attach supporting documentation. If the initiator does not have the necessary information on hand, he can apply to obtain it from the company.

The deadlines for contacting the competent authorities are not established by current legislation. The exception is the court. A person can apply to it within three months from the moment he became or could become aware of a violation of his right.

Liability for illegal refusal

For an unreasonable refusal to provide a break for rest and recovery, the boss may be held accountable. Enforcement measures are determined by authorities that are vested with such powers, for example, the labor inspectorate.

Most often, such a procedure is initiated after receiving a complaint from a worker. Although there are often cases when sanctions are applied to the boss based on the results of a scheduled inspection.

Bringing to administrative responsibility

For failure to provide a mandatory break for rest and recovery, administrative penalties may be applied to the boss.

Denying a person leave may result in the following sanctions:

1. A fine of one to five thousand rubles will be imposed on the official. He will pay the same amount individual entrepreneur, which operates without forming a company. The organization will be required to pay from thirty to fifty thousand.
2. In the event of a relapse, that is, a repeated offense of this kind, on the part of a person who has already been administratively punished, the person will be required to pay from ten to twenty thousand or will be deprived professional qualifications for a period of twelve to thirty-six months. In this case, the entrepreneur will have to pay from ten to twenty thousand, the company - from fifty to seventy thousand.

It should be noted that deprivation of qualifications applies only to officials in case of repeated violation.

If a fine is imposed on a company, then compensation for such losses occurs at the expense of the perpetrators, that is, the manager may also face financial liability.

The amount of penalties is determined for each case separately based on the prevailing circumstances. In such a situation, the fact of violation itself matters. The severity of the consequences for administrative liability does not matter.

You might be interested

Is an unreasonable refusal to hire always illegal? How to properly motivate a reluctance to hire an applicant and whether it is possible to challenge a negative decision of an employer is not difficult to figure out if you know labor law!

In history labor legislation Many precedents have been described related to challenging unjustified refusals of applicants to accept a vacant position, but similar situations continue to occur, and most of them do not reach the courts. Why is that?

When looking for a job, many job seekers are psychologically ready to make a negative decision and do not want to delve into why the employer is refusing them. In addition, most citizens are simply not aware of their rights, unlike personnel officers who know the necessary articles of the law and know how to convince potential applicants of the correctness of their arguments. But they also make mistakes, looking for reasons.

Relying on legislative framework, the concept of “unreasonable refusal” can be defined as follows: this is a refusal to hire that does not have the grounds listed and regulated by the Labor Code of the Russian Federation - Art. 62, 63, 64.

These articles specify the types of groundless refusal:

• on discriminatory grounds (race, gender, Family status, age, pregnancy, etc.);
• unlawful (when the applicant is presented with requirements not provided for by law);
• unmotivated (when the employer does not bother to explain to unsuccessful employees the reason for the refusal). At the request of the person who was refused, he must provide a written document indicating this reason.

Contains a code and a number of articles defining possible negative grounds for hiring a new employee. More about them...

Legitimate reasons for refusal to hire

Among the official reasons for refusal are the following:

• failure of the candidate to reach the age required to sign an employment contract (Article 63 of the Labor Code of the Russian Federation);
• lack of documents required for registration (Article 65 of the Labor Code of the Russian Federation); Moreover, the absence of a work book is not such a reason - if the hired employee has lost it (or has not yet created it) and he notified the employer - the enterprise - about it;
• inadequacy of physical health and psychological characteristics applicant for the proposed position (Articles 253, 265 of the Labor Code of the Russian Federation);
• presence of an entry in work book candidate for a ban on holding this position and conducting certain activities (Articles 44, 47 of the Criminal Code of the Russian Federation).

Also, separate regulatory documents establish restrictions on the possibility of accepting a vacancy in the field of:

• pedagogical activities;
• civil service;
• medical practice.

The law makes it possible to understand how to correctly refuse an applicant a job - a personnel officer can use any of the following wording:

• lack of the required level of education;
• out of stock practical experience in the area of ​​activity of the enterprise;
• the applicant’s health condition contradicts the requirements imposed on the employee for this position (a conclusion from a medical commission is required);
• the candidate’s personal qualities indicate that it is impossible for him to fulfill professional responsibilities(this wording can be used after);
• the knowledge and skills that the applicant possesses do not correspond to the direction of the organization;
• absence vacancies in the organization at the time of application;
• the interview was conducted by an unauthorized person;
• the candidate does not meet the requirements prescribed by special regulatory documents.

Unlawful grounds for refusal of a vacancy

The list of unfounded refusals submitted in the labor code is of a notification nature and may include many reasons that the court considers unlawful. An applicant who has been refused can win a case in court if the reason is one of:

• pregnancy or the presence of a child under 6 years of age or a disabled minor child;
• (if management was notified in writing);
• disability (presence of a medical certificate);
• HIV infection;
• non-observance of rights - discrimination of racial, national, property, ethnic, social, religious, age, gender nature.

Any of the above reasons will be grounds for filing a claim, the main thing is that the rejected applicant for the position receives a written refusal to hire - the employer must provide it upon request no later than three working days.

How to challenge an employer's refusal to hire you in court

The right to work and choice of activity is regulated by the Constitution of the Russian Federation. Every citizen who has received an unlawful refusal to hire can challenge it in judicial procedure based on part 6 of Art. 64 Labor Code of the Russian Federation.

The period for appeal after receiving an unlawful decision from the employer is three months. In this case, the plaintiff has the right to compensation for material and moral damage, and, if desired, to obtain the coveted position if he wins the case.

Difficulties that a claimant may encounter include the following:

• it is necessary to prove the fact of contacting the employer’s organization;
• it is necessary to prove the fact of refusal - that is, to obtain written confirmation of it with the discriminatory reasons listed above.

If the written refusal contains only a note about the candidate’s absence business qualities necessary to carry job responsibilities or there is an indication that the applicant does not meet the requirements specified in the regulatory documents - the case will obviously be lost, and the fact of an unlawful refusal will be practically unprovable! Even with witnesses, winning will be difficult and troublesome!

Perhaps, for a failed employee, the consolation will be the realization that he was lucky not to be subordinate to a manager who does not value the company’s reputation and the respect of his employees! After all, such a manager may sooner or later be punished for a careless attitude towards personnel issues.

It doesn’t matter whether you are a job seeker or an employer, knowing what a motivated refusal to hire looks like will come in handy! Be legally literate and let your profession give you only positive emotions!

Every organization is faced with the need to recruit qualified personnel. On the one hand, the employer is free to choose personnel and can select candidates for vacant positions that best suit the characteristics of the job for which they are hired. Thus, in the resolution of the Plenum of the Armed Forces 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” it is noted that the employer has the right to independently, under his own responsibility, make personnel decisions for the purpose of effective economic activity and rational property management (namely, to carry out the selection of personnel, their placement, dismissal). Concluding an employment contract with a specific person is a right, not an obligation, of the employer, and the Labor Code of the Russian Federation does not contain rules obliging the employer to fill vacant positions or jobs immediately as they arise.

On the other hand, the Constitution of the Russian Federation and the Labor Code of the Russian Federation proclaim the principle of freedom of labor, which means that everyone has the right to freely dispose of their ability to work, choose their type of activity and profession (Article 37 of the Constitution of the Russian Federation, Article 2 of the Labor Code of the Russian Federation). At the same time, one of the main guarantees aimed at implementing this principle is prohibition of unjustified refusal to conclude an employment contract. In addition, the Supreme Court of the Russian Federation, in its resolution of the Plenum of March 17, 2004, notes that when considering disputes related to refusal to hire, it must be borne in mind that everyone has equal opportunities when concluding an employment contract without any discrimination.

Thus, in order to protect the employee as much as possible weak side labor relations, the current legislation establishes certain restrictions on the employer’s freedom to hire, namely, the prohibition of unreasonable refusal to conclude an employment contract.

In particular, the prohibition of unjustified refusal to conclude an employment contract is provided for in Article 64 of the Labor Code of the Russian Federation, according to which any direct or indirect restriction of rights or establishment of advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property , social and official status, place of residence (including the presence or absence of registration at the place of residence or stay), as well as other circumstances, not related to business qualities of employees, is not allowed, except in cases provided for by federal law.

The listed restrictions or advantages are recognized as discrimination in the field of labor (Article 1 of ILO Convention No. 111 “On Discrimination in the Field of Labor and Occupation” of 1958, ratified by the Decree of the Presidium of the Supreme Soviet of the USSR dated January 31, 1961, Article 19 of the Constitution of the Russian Federation, Art. 3 Labor Code of the Russian Federation).

Thus, based on the content of Article 64 of the Labor Code of the Russian Federation, a refusal to conclude an employment contract that is not related to the employee’s business qualities is unreasonable (with the exception of cases provided for by federal laws). In addition, Article 64 of the Labor Code of the Russian Federation provides for two more unconditional cases when it is impossible to refuse employment: women for reasons related to pregnancy or the presence of children, as well as persons invited in writing to work as a transfer from another employer, in within one month from the date of dismissal from the previous place of work.

You can't refuse a job!

So, according to Article 64 of the Labor Code of the Russian Federation, it is impossible to refuse to conclude an employment contract:

for reasons that are discriminatory in nature and not related to the employee’s business qualities (Part 2 of Article 64 of the Labor Code of the Russian Federation).
As already noted, such reasons include refusal to hire for reasons based on gender, race, skin color, nationality, etc. The current Labor Code of the Russian Federation, compared to the Labor Code, significantly expands the list of discriminatory circumstances. Thus, at present, restrictions on rights or the establishment of advantages when concluding an employment contract depending on skin color, social and official status are recognized as discriminatory. It is noteworthy that Federal Law No. 90-FZ of June 30, 2006, additionally included the age of the candidate in the list of circumstances for which the establishment of advantages when concluding an employment contract is not allowed. Very often, one of the employer’s requirements when searching for a candidate for a vacant position is the presence of permanent or temporary registration in the region where the employer operates. Labor legislation clearly classifies such a requirement as discriminatory. Refusal to hire a citizen of the Russian Federation due to his lack of registration at the place of residence or stay is illegal, as it violates the right to freedom of movement, choice of place of stay and residence. In addition to Article 64 of the Labor Code of the Russian Federation, the inadmissibility of refusal on this basis is also noted in paragraph 11 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004;

women for reasons related to pregnancy or the presence of children (Part 3 of Article 64 of the Labor Code of the Russian Federation).
This provision of the Labor Code of the Russian Federation does not mean that the employer is obliged to enter into an employment contract with all pregnant women or women with children who apply to him. In this case, as in relation to all other candidates, business and professional quality women. It will be illegal to refuse to hire someone due precisely to the woman’s pregnancy or the presence of children, and not to the lack of necessary business qualities;

employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work (Part 4 of Article 64 of the Labor Code of the Russian Federation).
Such a strict requirement established by the Labor Code of the Russian Federation for the employer who invited the employee seems quite logical, since in this situation the employee who agreed to work for another employer loses his previous job, and it is the new employer who must take on some responsibility for his employment.
Please note that the prohibition of refusal to hire is limited to a period of one month from the date of dismissal of the employee. At the same time, the Labor Code of the Russian Federation does not provide for any possibility of increasing this period automatically depending on the presence of valid reasons (illness of the employee himself, members of his family, etc.). After expiration given period concluding an employment contract with such an employee is the right, but not the obligation of the employer. However, by agreement of the parties, the monthly period can be increased (for example, if the employee needs time to move to another area).

In accordance with Article 72.1 of the Labor Code of the Russian Federation, the transfer of an employee to a permanent job with another employer is carried out, as a rule, by agreement between the heads of the organization with the written consent (or request) of the employee himself and on the basis of a written request for the transfer.

When deciding on the employer’s obligation to conclude an employment contract with an employee invited by way of transfer, the question often arises about the employer’s written invitation, namely, who should sign this invitation. The courts proceed from the fact that the invitation must be signed only by the proper person, that is a person who has the right to hire and fire an employee. As noted in paragraph 12 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004, the proper representative of the employer is the person who, in accordance with the law, other regulatory legal acts, constituent documents organization, local regulatory legal acts or by virtue of an employment contract concluded with him is vested with the authority to hire employees. Accordingly, if legal disputes arise, it is necessary to confirm the person’s authority to hire.

When accepting an employee invited by transfer, please note that, in accordance with Art. 70 of the Labor Code of the Russian Federation does not establish an employment test for persons invited to work by way of transfer from another employer as agreed between the employers. An employment contract with such an employee is concluded from the first working day following the day of dismissal from the previous job (unless otherwise provided by agreement of the parties). By the way, according to Part 4 of Article 80 of the Labor Code of the Russian Federation, an employee who submitted a letter of resignation due to at will, does not have the right to recall him if another employee is invited in writing to take his place (position) by way of transfer from another employer.

In addition to the cases directly specified in Article 64 of the Labor Code of the Russian Federation, based on the provisions of the Labor Code of the Russian Federation, a number of situations can be identified when the employer does not have the right to refuse employment:

by virtue of a court decision obliging the employer to conclude an employment contract (Article 16, 391 of the Labor Code of the Russian Federation);

in case of election(s) to a position of this person(Articles 16, 17 of the Labor Code of the Russian Federation);

Or is it still possible?

According to Article 64 of the Labor Code of the Russian Federation, refusal to hire is possible in cases where the employer:

• referred to the condition provided for by federal law,

• justified his refusal by the applicant’s lack of necessary business qualities.

Refusal with reference to the conditions provided for by federal law

Let us note exactly what conditions can be referred to when refusing to conclude an employment contract:

failure by the person applying for work to reach the age at which it is permissible to conclude an employment contract (Article 63 of the Labor Code of the Russian Federation). As a general rule, an employment contract can be concluded with an employee who has reached the age of 16 years. In some cases, an employment contract can be concluded at an earlier age (parts 2, 3, 4 of Article 63 of the Labor Code of the Russian Federation);

failure by a person applying for a job to provide documents that, according to the Labor Code of the Russian Federation, must be provided when concluding an employment contract (Article 65 of the Labor Code of the Russian Federation);

inconsistency between the category of the applicant due to physical or mental reasons and the nature of the proposed work. Thus, according to Article 253 of the Labor Code of the Russian Federation, it is prohibited to hire women for work that involves manually lifting and moving heavy loads that exceed the maximum permissible standards for them. And Article 265 of the Labor Code of the Russian Federation defines work in which the use of labor by persons under the age of 18 is prohibited;

failure by the person applying for work to comply with the requirements established by the Labor Code of the Russian Federation. For example, a minor’s refusal to undergo a mandatory medical examination when concluding an employment contract (Article 266 of the Labor Code of the Russian Federation);

presence in the work book of the person applying for work, an entry stating that, as a measure of punishment, this person is deprived of the right to occupy certain positions or engage in certain activities for a specified period (subparagraph “b”, part 1 of article 44 and article 47 Criminal Code of the Russian Federation).

In addition, persons who are prohibited from doing so by a court verdict or by law are not allowed to engage in teaching activities in educational institutions. medical indications, as well as persons who have an unexpunged or outstanding conviction for intentional grave and especially grave crimes (Article 53 of the Law of the Russian Federation of July 10, 1992 No. 3266-1 “On Education”).

On leadership positions V executive body Persons subject to administrative punishment in the form of disqualification cannot be appointed to the management of a legal entity (Article 3.11 of the Code of Administrative Offenses of the Russian Federation).

Certain restrictions for concluding an employment contract are provided for by the Federal Law of the Russian Federation of May 27, 2003 No. 58-FZ “On the civil service system of the Russian Federation.” In particular, knowledge of the Russian (state) language is a prerequisite for admission to the civil service.

There are a number of additional regulations that restrict hiring. For example, Decree of the Government of the Russian Federation dated October 11, 2002 No. 755 approved the List of objects and organizations to which Foreign citizens are not eligible to be hired. Decree of the Government of the Russian Federation of August 6, 1998 No. 892 defined a list of persons who are not allowed to work with narcotic drugs and psychotropic substances. The Decree of the Government of the Russian Federation of April 28, 1993 No. 377 approved the List of medical psychiatric contraindications for the implementation of individual species professional activities and activities associated with a source of increased danger.

Refusal due to the employee’s business qualities

Suppose that the applicant is not suitable for your organization, and reference to the conditions established by federal laws is impossible in this case, then the refusal to conclude an employment contract can only be due to the business qualities of the applicant for the vacancy.

The Labor Code of the Russian Federation does not establish what exactly refers to the business qualities of an employee. The definition of this concept is given in the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004. Thus, the business qualities of an employee should be understood as abilities individual perform certain labor functions, taking into account his existing professional qualifications (for example, the presence of a certain profession, specialty, qualification), personal qualities employee (for example, health status, presence of a certain level of education, work experience in a given industry). If the court finds that the employer refused to hire due to circumstances related to the employee’s business qualities, then such refusal will be justified

According to a number of experts, the definition of business qualities given in the resolution of the Plenum of the Armed Forces of the Russian Federation is not entirely successful, needs to be specified, and it is more expedient to establish only the criteria by which these qualities will be assessed. However, it should be recognized that a fairly broad definition of the concept of “employee business qualities” primarily serves the interests of the employer, and today law enforcement practice is based precisely on this definition.

You can get an idea of ​​the applicant's business qualities different ways. For example, a document on education contains information about professional knowledge, entries in a work book indicate practical work experience in the specialty, previous work. In practice, other methods of obtaining an idea of ​​an employee’s business qualities are common - testing, interviews, conducting business games and etc.

In addition, the employer has the right to present to a person applying for a vacant position or work other requirements that are mandatory for concluding an employment contract by virtue of a direct order federal law(for example, the presence of Russian citizenship, which is a mandatory condition for admission to the civil service, unless otherwise provided by an international treaty of the Russian Federation), or necessary in addition to standard or typical professional qualification requirements due to the specifics of a particular job (for example, possession of one or several foreign languages, computer skills).

One of the novelties of the Labor Code of the Russian Federation is the norm stipulating that, when refusing to conclude an employment contract with a specific applicant, the employer is obliged to explain to him the reason for the refusal and, at the request of the applicant, state it in writing (Article 64 of the Labor Code of the Russian Federation). This provision is mandatory in nature; accordingly, any applicant who contacts the employer has the right to demand a written explanation of the reasons for the refusal to conclude an employment contract with him, and the employer, in turn, if there is such a requirement, is obliged to provide this explanation.

Disputes about refusal to hire

If, in the opinion of the applicant, the refusal to hire is unfounded, he has the right to appeal it in court (Part 6 of Article 64 of the Labor Code of the Russian Federation). Moreover, in accordance with Article 3 of the Labor Code of the Russian Federation, a person who believes that he was discriminated against when concluding an employment contract has the right to demand in court the elimination of discrimination against him, compensation for damage caused and compensation for moral damage. Since the current legislation contains only sample list reasons why an employer does not have the right to refuse to hire a person, job seeker, then the question of whether discrimination occurred when refusing to conclude an employment contract is decided in court when considering a specific case (clause 10 of the resolution of the Plenum of the RF Armed Forces of March 17, 2004).

In accordance with Articles 381 and 391 of the Labor Code of the Russian Federation, an individual labor dispute about a refusal to hire is considered directly in the courts and falls within the competence of justices of the peace, since a labor dispute between an employer and a person who has expressed a desire to conclude an employment contract is not a dispute about reinstatement at work, since it arises between the employer and the person who has expressed a desire to conclude an employment contract, and not between the employer and the person who previously had an employment relationship with him (clause 1 of the resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

According to Article 28 of the Code of Civil Procedure of the Russian Federation, a claim is brought against an organization at its location. And since civil process is adversarial in nature, the employee must prove the circumstances that have legal significance for this dispute. But the employer, participating in the case as a defendant, also presents its objections. Thus, a citizen who goes to court must prove that the refusal does not comply with current labor legislation, and the employer must prove the legality of the refusal to hire, in particular, that the business qualities of the applicant do not meet the employer’s requirements for candidates applying for this vacancy.

Since concluding an employment contract with a specific person is the right, and not the obligation of the employer, and the employer should not immediately fill vacant positions, the Plenum of the Supreme Court of the Russian Federation clarified that when considering cases of refusal to hire, the courts need to check whether the employer made an offer for the available positions. his vacancies (for example, a message about vacancies was sent to the employment service, published in a newspaper, announced on the radio, announced during a speech to graduates of educational institutions, posted on a notice board), whether negotiations for employment were held with this person and on what grounds was he denied an employment contract?(Clause 10 of the resolution of the Plenum of the RF Armed Forces of March 17, 2004).

Thus, even if the vacancy announcement was communicated to potential applicants by all possible ways, the main thing is to correctly formulate the basis for refusal to hire.

Although an employee has the right to appeal in court an unjustified, in his opinion, refusal to hire, labor legislation does not provide for a specific legal mechanism for the implementation of this right. For example, the legal consequences of recognizing a refusal to conclude an employment contract as unfounded have not been established.

There are different points of view regarding what the court's decision on workers' claims may be. A number of experts believe that in a proven case of an unjustified refusal to conclude an employment contract, the court makes a decision obliging the employer to conclude an employment contract with the employee from the date of application for work. According to another point of view, the Labor Code of the Russian Federation does not contain relevant norms, and the rules obliging the employer to conclude an employment contract contradict the principle of freedom of the employment contract.

At the same time, according to the explanations given in the resolution of the Plenum of the Armed Forces of the Russian Federation dated December 19, 2003 No. 23 “On court decision", the operative part of the decision must clearly state what exactly the court ruled on the stated claim, as well as what specific actions should be taken by the defendant (in our case, the employer) in order to restore the violated rights of the plaintiff (a person who was illegally denied employment) .

The decision of the magistrate to satisfy the requirements for concluding an employment contract stated by the plaintiff is the basis for the emergence of labor relations (Part 2 of Article 16 of the Labor Code of the Russian Federation). If the claim is satisfied, the judge recognizes the refusal to conclude an employment contract as unfounded (illegal), obliges the employer to conclude an employment contract with registration of employment in the manner prescribed by Art. 68 Labor Code of the Russian Federation. In particular, it is indicated from what date the employee must begin work.

It should be borne in mind that when considering disputes about refusal to hire, the advantage is on the employer's side. This is due to a number of factors:

a broad definition of an employee’s business qualities, allowing one to argue the reason for refusal by their absence;

failure to establish in the current labor legislation a clear procedure for applicants to apply for employment, a procedure for registering and reviewing documents on concluding an employment contract, and a procedure for making a decision on concluding a contract.

For example, given that the employee’s business qualities also include his health status, if there is evidence of chronic diseases, periodic treatment, or disability, the courts will not make a decision on the forced conclusion of an employment contract with the employee.

In his statement of claim, the employee may make a demand such as payment for forced absence time. But the Labor Code of the Russian Federation provides for the satisfaction of monetary claims only of illegally dismissed workers or those transferred to another job. And since before the date of entry into force of the employment contract this person was not in an employment relationship with the employer, there are no legal grounds for paying for the period of time to a person who was illegally refused to conclude an employment contract with him.

Disputes about an unreasonable refusal to hire must be distinguished from those cases when the employment contract was not drawn up in the proper manner and the employee has already started work. Thus, in accordance with Article 16 of the Labor Code of the Russian Federation, in the case where the employment contract was not properly drawn up, labor Relations between an employee and an employer arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his representative. When an employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date of actual admission to work (Article 67 of the Labor Code of the Russian Federation).

Employer's liability for unjustified refusal to hire

Persons guilty of an unreasonable refusal to conclude an employment contract may be subject to disciplinary, administrative and criminal liability. In particular, the employer may apply the following to guilty officials: disciplinary action: reprimand, reprimand, dismissal (Article 192 of the Labor Code of the Russian Federation).

In addition, according to Article 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of labor and labor protection legislation entails the imposition of an administrative fine on officials in the amount of up to 5,000 rubles. Repeated commission of this violation by a person who was previously subjected to administrative punishment for a similar administrative offense shall entail disqualification for a period of one to three years.

Thus, there is no truly serious liability for unjustified refusal to hire. An exception is the refusal to conclude an employment contract with a pregnant woman and a woman with children under 3 years of age. In accordance with Article 145 of the Criminal Code of the Russian Federation officials, vested with the right to hire and dismiss from work, may be held criminally liable for an unreasonable refusal to conclude an employment contract with a pregnant woman and a woman with children under 3 years of age. They may be subject to a fine of up to 200 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to 18 months, or in the form compulsory work for a period of 120 to 180 hours.

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As you can see, the employer’s freedom to conclude an employment contract with an applicant for a vacant job is somewhat limited. But, at the same time, there is also no legal obligation to hire anyone who applies. The golden mean in this case is the lawful behavior of the employer, which consists in compliance with labor legislation aimed at preventing unreasonable refusal to conclude an employment contract. When refusing a job, you must provide the reason for the refusal, justify your refusal by the lack of necessary business qualities of the applicant or their inconsistency with the characteristics of the vacant position, and if there is a corresponding request from the applicant, give him a written explanation of the reason for the refusal. Compliance with these rules will reduce the likelihood of possible disputes about the legality of a refusal to hire.

1 See the article by E.N. Nikolaeva “Alternatives to personnel search” on page 92 of magazine No. 8` 2007

The right to annual paid leave in our country is guaranteed to every employee by law. The articles of the Labor Code regulate the rules and all the nuances relating to vacations, as well as their transfer or refusal to provide certain types for some reason. The solution to the issue of a possible refusal by the employer to leave a subordinate depends on specific situation. The general rule is: refusal of a timely submitted and correctly completed application is a violation of the right to rest and is therefore illegal.

But if the employer still refuses leave, what should you do? In the absence of proper grounds for this, his actions are subject to appeal under the law.

How is annual leave granted?

Chapter 19 of the Labor Code of the Russian Federation “regulates” holidays. Employees whose work experience in the company exceeds 6 months can take advantage of the right to take legal rest. After this period, the employee may be granted a vacation at his request, or it may be included in the vacation schedule for the next calendar year. It is this document that regulates the procedure for providing annual paid leave in a particular organization.

Such a schedule is drawn up at each enterprise or institution at the end of the current year. It must be approved no later than December 17. All employees are introduced to the vacation schedule against signature.

Can early leave be denied?

If an employee decides to take a break before the expiration of a six-month period of work, can the employer refuse leave and in what case? This occurs when the employee does not fall into any of the benefit categories listed below.

Those who are on the list of beneficiaries can go on their first vacation before the end of the six-month working period.

Who are these same beneficiaries? The right to go on early leave belongs to:

1. For minors.

2. Women going on a “planned” maternity leave.

3. For those who have adopted a small child (up to 3 months).

4. Husbands of women “on maternity leave.”

5. Part-time workers, if during this period of time there is a vacation at the main place of work.

6. Wives of military personnel who are entitled to leave at the same time as their husbands.

Who else belongs to the preferential category?

Additionally we're talking about O:

1. Veterans and disabled people of war.

2. Victims of the Chernobyl accident.

3. Heroes of Russia, Socialist Labor, USSR.

4. Honorary donors.

5. Victims at the training ground in Semipalatinsk.

If you do not belong to one of the listed preferential categories, but you need leave, say, for health reasons or for family reasons, the law does not prohibit granting the right to rest to such an employee. But it should be understood that this action relates to the rights, and not the obligations, of the employer. If he complies with the procedure for granting annual paid leave, the law does not have the right to oblige him to provide an ordinary employee (not a benefit recipient) with rest before completing six months of work experience.

Is it possible to refuse scheduled leave?

For each calendar year, a schedule of planned vacations with the order of their provision is drawn up and approved at the very end of the current year - in December. The approved document is binding on both parties - the employer and the employee. Can an employer refuse leave contrary to the approved deadlines, citing the impossibility of replacement or other reasons important for production? How legal are his actions?

From a formal point of view, such a decision is contrary to labor legislation. In practice, management is given the right to postpone vacation to another time. This is done only if such an alternative is understood by the vacationer himself. That is, this action complies with the law if the employee agrees with the proposal to transfer.

Some nuances

A similar transfer of vacation is legally possible to the next year. But here we should not forget about the prohibition of a two-year period of work without official rest. In addition, vacations for minor workers are not transferred even if they consent.

Can an employer refuse leave without offering a transfer? Definitely not. The law strictly prohibits refusal in the case of an officially drawn up and signed schedule.

But this does not apply to situations in which subordinates request leave on other dates that are not agreed upon in documents. If an application for leave “out of turn” is submitted without special grounds, this may become the reason for a completely legitimate refusal.

Sometimes we are talking about dividing annual paid leave into parts. But at least one of them should not be shorter than 14 days.

Instead of rest - compensation?

Is it possible to reach an agreement like this - the manager refuses the vacation, but in return offers to pay compensation in money for the entire period. According to the law, this is impossible. Although the Code provides for the option of paying monetary compensation in exchange for the unrealized right to rest, payment in money is allowed only for the time that exceeds the annual mandatory period of 28 calendar days.

For example, when on vacation lasting 35 days, the employee, at his own request, has the right to receive compensation for a period of 7 days. And, let us remind you once again, such a replacement vacation days money can only take place on the initiative of the employee, and not the authorities.

Leave without pay - sample and important nuances

The so-called administrative (or unpaid) leave can be taken by an employee at any time. This does not depend on the length of work experience. Payment is not saved in this case. To obtain one, the employee should send an application to the employer with a request and, most importantly, a request-justification, that is, explain the need for it. Refusal or consent depends on how important the employee’s motivation seems to management.

Is it possible to refuse leave without pay? Yes, unless both of the following conditions are met:

1. Citizens belong to the category of those who have the right to the mandatory provision of such administrative leave.

2. The limit of days “without pay” regulated by law has not yet been exhausted by them.

1. Participants of the Second World War. For them, the annual limit on the duration of administrative leave is 35 days.

2. Working disabled people - the same period for them is 60 days.

3. Those who have reached retirement age. If the pensioner continues to perform job responsibilities, he is given the right annual leave without maintenance for 14 days.

4. Widows or widowers of those killed in service or as a result of injury, illness, injury that occurred due to a work-related reason. Here the limit is also 14 days.

5. Five days annually must be given to someone who has had the birth (death, marriage) of a close relative.

This list, established by Article 128 of the Code, is not exhaustive. Additional guarantees in the social sphere are possible in some cases legislative acts and internal regulatory documents employer companies. Most often, employees are rarely denied leave at their own expense.

Let's talk about holidays for women

Now we are talking about and concerns pregnant women and young mothers entering the workplace. These persons belong to the category of employees protected by law.

According to Labor Code, all women are guaranteed the right to use maternity leave, as well as long leave to care for a child until he is three years old. But in real conditions The rights of pregnant women and young mothers are very, very often violated.

Can they not allow me to go on another vacation on the eve of maternity leave?

Can an employer refuse leave to a pregnant employee about to go on maternity leave, citing the upcoming maternity leave (and such situations are not uncommon)? It should be clearly understood that such a refusal refers to the most serious violations of labor legislation.

In fact, the fact of pregnancy “works” not for the employer, but for the employee. She becomes a “beneficiary” and can request another unscheduled vacation.

Completely legal and very convenient for expectant mother is the option of going on maternity leave immediately after the next vacation. If management refuses to implement such an option, this already gives the right to appeal to higher authorities.

Unfortunately, it is impossible to give such an unambiguously positive answer to the question of whether it is possible for a pregnant woman to be denied another leave in the most general case (when we are not yet talking about maternity leave). An employer may not allow an adult employee to go on vacation outside the agreed schedule. However, a pregnant woman enjoys additional privileges. For example, it is impossible to fire her for absenteeism.

Can management refuse to let an employee go on maternity leave?

What is it? In fact, it consists of two legally unequal parts - maternity leave and long-term leave provided to care for a child. The first as such does not apply to vacations.

The basis for its provision and payment is sick leave disability. That is why refusal to provide such a period of rest is impossible in principle.

Leave for child care, according to general rules, are provided until the child reaches the age of three. Their duration is not necessarily exactly three years. A woman has the right to apply for such leave on any day of the specified period. The vacation ends automatically on the next day (working day) after the baby’s third birthday.

It can be provided not only to the mother, but also to any person who actually cares for the child. At the same time, payment (quite modest, in the form of a social benefit) is required by law only in the first year and a half.

Quite often (mainly for financial reasons) a young mother is forced to go to work before the baby turns three years old. But sometimes, due to family circumstances, she needs to go back on maternity leave. The employer may be against such a decision.

The law determines that such a refusal refers to violations of the social guarantees prescribed in the Labor Code. That is, by interrupting maternity leave ahead of schedule, a woman is not deprived of the right to go on the same leave again if the need arises.

What refusals are legal?

The bulk of the provisions of labor legislation are aimed at protecting the interests of workers. But it also contains rules that prevent employees from abusing their rights. These include a list of those situations when refusal of leave by the employer is legal.

So, let’s list the reasons why you will be legally denied a vacation at a time that you have chosen for yourself:

1. An employee not related to preferential category, leave was requested during the first half of the year of fulfilling work duties.

2. A properly completed written application (if accepted by the organization) was not submitted on time. There is no need to write an application if vacations are provided according to a predetermined schedule. In this case, it is enough to familiarize the employee in advance - 14 days in advance.

3. If the employee intends to formalize his resignation immediately after the requested leave.

4. If a sufficiently serious production need arises. But, as already mentioned, this basis is used only with the voluntary prior consent of the employee.

If you are refused, be sure to ask the reasons. Knowing them, you can easily figure out how legal the management’s actions are.

Art. 173-177 Labor Code of the Russian Federation: study leave

Such leaves are provided for those citizens who combine study and work. In order for claims to receive such leave to be justified, a number of conditions must be met:

1. This is the employee’s first time obtaining an appropriate level of education. What does this mean practically? If a part-time student who does not yet have a higher education is working, he is entitled to student leave. But with the finished higher education he can apply for such only when studying in a master's or graduate school.

2. If a worker manages to study simultaneously in several educational institutions at once, an application for study leave he writes only for the session in one of them - at the choice of the student himself.

3. When an employee is a part-time worker, he is not entitled to such leave. Study leaves are given exclusively at the main place.

4. It is provided only subject to state accreditation of the educational institution where the employee receives his education.

5. A mandatory document attached to the application for study leave is a summons certificate issued by the educational institution.

6. The duration of such leave must be within the established limit. It is possible to exceed it, but only by mutual agreement with the employer.

If all of the above conditions are met on the part of the employee, but nevertheless he is denied student leave, the actions of his superiors can be considered a violation of labor legislation, and it can be appealed in the prescribed manner.