Temporary transfer to another job according to the Labor Code of the Russian Federation. Is it possible to be demoted without the employee's consent?

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

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

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

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

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

Article 74 of the Labor Code of the Russian Federation

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

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

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

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

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

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

How certification for compliance with qualifications is carried out

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

Key points to pay attention to:

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

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

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

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

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

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

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

Important to remember:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Demotion as a disciplinary sanction

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

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

Can a manager hire an employee for one position and then transfer the same employee to another position with a lower salary? How to arrange this correctly? The transfer of an employee is due to the fact that his qualifications do not correspond to the position held.

According to part one of Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another location with an employer. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Art. 72.2 Labor Code of the Russian Federation.

An employee may also be transferred to a lower-paid job. According to part four of Art. 72.1 of the Labor Code of the Russian Federation, it is not allowed to transfer an employee to a job that is contraindicated for him for health reasons. As we understand from the question, we are talking about transferring to another permanent job.

Labor legislation contains a requirement that earnings from a new job correspond to the average earnings from a previous job only for cases of temporary transfer, the need for which is caused by emergency circumstances (parts two to four of Article 72.2 of the Labor Code of the Russian Federation). In all other cases, remuneration is made according to the work performed (part one of Article 132 of the Labor Code of the Russian Federation). Thus, it is possible to transfer an employee to “another position with a lower salary” if he agrees to this.

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

If the initiator of the transfer is the employer, then by offering a lower-paid position, he can explain to the employee the reason for the change in job function. However, the employer does not have the right to insist on a permanent transfer. An employee cannot be forced to sign an agreement to transfer to another job. If an employee does not want to move to a lower-paid position, then the employment relationship continues without changes.

At the same time, if the employee is not suitable for the position held or the work performed due to insufficient qualifications, the employer has the right to terminate the employment contract with such an employee under clause 3 of part one of Art. 81 Labor Code of the Russian Federation. In this case, the employee’s inadequacy for the position held or the work performed due to insufficient qualifications must be confirmed by certification results.

In accordance with part three of Art. 81 of the Labor Code of the Russian Federation on this basis is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid work), which the employee can perform taking into account his health status. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Komarova Victoria

Checked the answer:
Reviewer of the Legal Consulting Service GARANT
Mikhailov Ivan
Company "Garant", Moscow

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service. For detailed information about the service, contact your service manager.

Accounting News, No. 18

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

1. Personal interest of the employee in this work

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

3. Personal initiative of the employer

4. State of health of the employee

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

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

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

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

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

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

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

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

These include the transfer of an employee:

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

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

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

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

Shortened working hours, shortened working week

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

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

Part-time work

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

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

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

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

An employee can only be transferred to a position that is in the staffing table, otherwise the employer will violate the law. If an employee is transferred to one of the company’s branches, there is no need to terminate his employment contract and enter into a new one - we will consider these and other features of transferring an employee to a lower position in the article.

From the article you will learn:

• how to formalize the transfer of an employee from one company to another within the holding company;
• how an employee is transferred to one of the company’s branches;
• how to transfer a pregnant employee to light work in the absence of suitable vacancies.

An employee can be transferred to a lower position only under one condition: if he agrees to such a transfer and confirms his consent with a written application for transfer (Art., Labor Code of the Russian Federation). This statement will confirm the eligibility of the transfer in the event of litigation. After consent is received, an additional agreement to the employment contract is concluded and a transfer order is issued.

If the employee does not agree to the transfer, but the employer is determined to do so, he can issue not only a demotion, but also dismiss the employee based on the results of the certification as not meeting the qualification requirements (). It is important that all procedural requirements are met, otherwise such demotion or dismissal will be declared illegal by the court.

If the certification shows that the employee is insufficiently qualified, the employer is obliged to offer him all available vacancies that do not require relocation and that correspond to the employee’s experience, professional skills and state of health. This could be a lower paid job or a lower position ().

An employee can be fired or transferred based on the results of certification only within two months after it and not later (Regulations approved, appeal ruling of the Murmansk Regional Court dated June 24, 2015 in case No. 33-1725-2015).

How to transfer an employee to another job

A situation in which it is necessary to transfer an employee to another job may arise in connection with the reorganization or expansion of the company’s activities, based on certification results or medical indications, or the need to replace another employee. Let's look at non-standard cases that usually raise questions among HR workers.

Situation 1. It is necessary to transfer an employee from one company to another as part of a holding company

A holding is a collection of companies, while its parent company is managed by its subsidiaries, each of which is an independent legal entity. Therefore, the transfer in this case is carried out in the same manner as in case of dismissal in connection with a transfer to work for another employer ().

When the transfer was initiated by the receiving employer, he must send to the organization where the employee works a corresponding letter - a request for the transfer. After receiving the request, the issue must be agreed upon with the employee and his written consent must be obtained in the form of an application for dismissal in connection with the transfer (). After dismissal, the employee enters into a new employment contract with the organization to which he transferred (, Labor Code of the Russian Federation). The work book must indicate that the transfer was made not with the consent of the employee, but at his request (Instructions approved).

In this situation, the employee does not retain the right to vacation in another organization, since upon dismissal he must receive all due monetary compensation for unused vacation (). The new employer will have the right to leave for the employee only after six months of work, but by agreement of the parties he can receive this right earlier ().

Situation 2. Transfer to a position that is not in the staffing table

The staffing table contains a list of structural divisions of the organization, the names of positions and professions indicating the qualification requirements for them, information on the number of staff units (). The concept of “labor function”, stipulated in the employment contract, involves working in a given position in accordance with the current staffing table ().

Therefore, an employee can only be transferred to a position that is in the staffing table. If necessary, a new position can be introduced into the staffing table by appropriate order.

Situation 3. Transfer of an employeefrom the parent organization to the branch, which is located in the same city

In this case, it is not necessary to dismiss the employee and conclude a new employment contract with him, since the branch is not an independent legal entity (). In this situation, the procedure for transferring to another permanent job with the same employer applies.

Such a transfer, as a rule, is associated with a change in the labor function and the name of the unit, i.e., a change in the terms of the employment contract (). To do this, it is necessary to obtain written consent to such changes from the employee and enter into an additional agreement with him, which will indicate the new place of work and another structural unit ().

After signing the additional agreement, a transfer order is issued, in personal card and the employee’s work book, the corresponding entries are made (Rules approved).

Situation 4. It is necessary to transfer a pregnant employee to light work, but there are no such vacancies

If there is no vacancy with appropriate working conditions at the enterprise, the pregnant employee is released from work while maintaining the average earnings in her previous position until the start of maternity leave (). Or the employer, by order, can introduce a new position into the staffing table with easier working conditions and transfer the employee to it.

Situation 5. Performing the duties of a temporarily absent employee

An employee may be temporarily transferred to another position to replace a temporarily absent employee. The law does not establish a maximum period for which such a transfer is possible; it is usually specified in the additional agreement as “until the replaced employee returns to work” ().

Situation 6. Temporary transfer to the place of an employee who went on maternity leave

An employee can be transferred to another position in the same company for a period of up to one year, and in the case of replacing an absent employee - until the latter returns to work (). When it comes to replacing employees during maternity leave, the exact date when the employee leaves it is unknown. As a condition for terminating the transfer, the additional agreement can state: “return from parental leave of the replaced employee.”

When the replaced employee returns to the workplace, it is necessary to issue an order to terminate the temporary transfer period. If such an order was not issued and the temporarily transferred employee continued to work at the same workplace, the transfer loses its temporary effect and is considered permanent ().

Situation 7. Drawing up an order to dismiss a temporarily transferred employee

In this case, the question arises - what position should be indicated in the dismissal record? In the case of a temporary transfer, the corresponding mark is made only on the personal card; such an entry is not made in the work book (Rules approved).

Therefore, if an employee, temporarily transferred to another position with the same employer, decides to quit, the dismissal order and the work book indicate the position he held at the time of dismissal.

Attached files

• Submission of employee transfer (form).doc
• Request for employee transfer (form).doc
• Confirmation of request for employee transfer (form).doc

Available to subscribers only

• Submission of employee transfer (sample).doc
• Request for employee transfer (sample).doc
• Confirmation of request for employee transfer (sample).doc

Translation based on medical report

According to Art. 73 of the Labor Code of the Russian Federation, an employee who needs to be transferred to another job in accordance with a medical certificate issued in the manner established by 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. The translation could be like temporary, so permanent and is issued after the employer receives a medical report on the need for such a transfer.
The procedure for the employer to prepare documents on the transfer of an employee to another job as follows:
1. The employee is sent a notice of the need to transfer to another job, indicating the vacancies available in the institution. It is drawn up in free form in two copies; on the employer’s copy, the employee must put a mark indicating receipt of the notification. Consent to the transfer or refusal to transfer may also be indicated on a copy of the employer's notice, or may be submitted 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 dated February 21, 2011 No. 21.
As of February 22, 2011, Alta LLC has the following vacancy that matches your qualifications and is not contraindicated for you due to health reasons:
- 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 /

I have read the notification.
I agree with the temporary transfer to the position of guard.
Krivtsov A.E. 02/22/2011

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

Additional Agreement No. 1
to the employment contract dated June 30, 2010 N 56

22.02.2011
Moscow

Limited Liability Company "Alta" 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 dated February 21, 2011 No. 21, was transferred on February 22, 2011 to the position of guard for a period of three months.
2. The employee is given a salary of 10,000 (ten thousand) rubles per month.
3. This additional agreement is drawn up 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 Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1 (hereinafter referred to as Resolution No. 1).
4. Information about the permanent transfer is entered in the work book no later than a week from the date of publication of the order (clause 10 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225 “On work books” (as amended on May 19. 2008)). Let us remind you that an entry about a temporary transfer is not made in the work book.
5. Information about the transfer (both temporary and permanent) is entered to the employee’s personal card.
The specified procedure is common for all cases of processing a transfer indicated below.
If the transfer was temporary, upon its completion the employee must be provided with his 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 loses force and the transfer is considered permanent (Article 72.2 of the Labor Code of the Russian Federation).
If the employee, after receiving notice of the need to transfer to another position, refuses it or the employer does not have any vacant positions, the employee must be suspended from work without pay. However, it should be remembered that this rule applies if a medical report prescribes a transfer for a period of 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 vacant positions in the organization, the employee should be dismissed. In this regard, we recommend indicating the legal consequences of refusal to transfer in the notification of the need for translation. The wording may be as follows: “In case of refusal of the 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 Clause 8 of Part 1 of Article 77 of the Labor Code of the Russian Federation.” The order is drawn up in Form N T-8, after which a corresponding entry is made in the work book and a note is made in the personal card of 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 needs a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the corresponding job, the contract is terminated on the basis of 8 hours 1 tbsp. 77 Labor Code of the Russian Federation. The employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to these employees, except for cases provided for by the Labor Code of the Russian Federation, other federal laws, collective agreements, agreements, and employment contracts.

Transfer in connection with the decision of the certification commission

Clause 3, Part 1, Art. 81 of the Labor Code of the Russian Federation provides for such grounds for termination of an employment contract as the employee’s inadequacy for the position held or the work performed due to insufficient qualifications, confirmed by certification results. However, dismissal is carried out 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 work 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. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. If the employee refuses to be transferred to a lower position or there are no vacancies, dismissal follows.
Let us recall that the procedure for conducting certification is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers. Therefore, in order to recognize the certification and subsequent transfer of employees as legal, the organization must adopt local regulations that establish the procedure for conducting certification and the employer’s actions 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 completed in the same manner as discussed in Section. 1 article.

Reduction

A reduction in the number or staff of employees of an organization or individual entrepreneur may also become the reason for 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 this, as in the previous case, the employee must be offered the employer’s available vacant positions or jobs, including lower-ranking and lower-paid ones. When carrying out a reduction, it is important to pay attention to the correctness of the documents associated with this procedure:
1. Issue an order to reduce staff.
2. Send a written message to the elected body of the primary trade union organization about the upcoming layoff to obtain information about trade union members.
3. Create a commission to identify candidates for layoffs, as well as candidates entitled 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 candidates for dismissal in writing about the upcoming reduction in headcount (staff) and offer vacant positions and 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 section. 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 No. 1).

Translation by agreement of the parties

A 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, due to 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 enter into an additional agreement to the employment contract, which specifies new working conditions. In the case where the initiative comes from the employer and the employee is not against the transfer, only an additional agreement to the employment contract is drawn up. In both cases, it is advisable to indicate the reasons for the transfer, clearly indicating the need for its implementation.
Please 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 a period of up to one month to a job not stipulated by an employment contract with the same employer in the event of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or replacing a temporarily absent employee, if downtime or the need to prevent destruction or damage to property or replacing a temporarily absent employee is caused by emergency circumstances specified in Part 2 of Art. 72.2 Labor Code of the Russian Federation. However, if the work requires lower qualifications, 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 work of lower qualifications) 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 threaten the life or normal living conditions of the entire population or part of it, 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 is paid according to the work performed, but not lower than the average earnings for the previous job.
Please note that in the event of a legal dispute 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 connects 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 dated 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 a 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. A complete list of possible disciplinary sanctions is given in Art. 192 Labor Code of the Russian Federation. These include reprimand, reprimand and dismissal on the grounds specified in this article. Accordingly, any transfer as a disciplinary measure will be declared illegal by the court. In addition, there are cases when an employer transfers undesirable employees to a lower position, thereby wanting to force them to resign of their own free will.
To illustrate, let us consider the decision of the Tatar District Court of the Novosibirsk Region dated 04/27/2010, according to which the plaintiff R. on 04/15/2010 filed a claim with the defendant - the municipal institution "Interschool Methodological Center" - for reinstatement in her previous position, recognizing the transfer order as illegal and recovery of compensation for moral damage. From the case materials it is known that R. worked in the organization as a chief accountant. By order dated April 1, 2010, she was transferred to a lower position as 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 bring R. to disciplinary liability - to issue 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 04/21/2010 (after R. filed a statement of claim in court), the transfer order dated 04/01/2010 was canceled and R. was reinstated in the position of chief accountant. In this regard, at the court hearing, R. waived her claims regarding reinstatement at work in her previous position, but asked to recognize this order as illegal, since R. knew nothing about the official inspection carried out against her, the inspection was carried out by one person, not a specialist in the field of accounting, there were no requests for explanations from management, R. did not consent to the transfer and believes that the reason for the transfer was the events that took place during her illness. In particular, she returned to work after the operation (03/30/2010) and they began to demand from her the execution of 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 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 transfer had undermined her business reputation both at the level of the Ust-Tark and Tatar districts. After the incident, workers who had previously reported to R. began to treat her with disrespect, and the experiences associated with these events affected R.’s health. In connection with the above, R. asked for compensation for moral damages in the amount of 100,000 rubles.
The court, having examined the case materials, made a decision to satisfy the claims. In particular, the order of the municipal institution "Interschool Methodological Center" dated 04/01/2010 on the permanent transfer of employee R. from the position of chief accountant to the position of accountant was declared illegal; compensation for moral damage in the amount of 6,000 rubles was recovered from the defendant in the interests of R., as well as a state fee to the federal budget in the amount of 4,000 rubles.
According to Part 1 of Art. 72.1 of the Labor Code of the Russian Federation, 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 this article). Therefore, any transfer not agreed upon with the employee will be declared illegal by the court. A striking example is the decision of the Turinsky District Court of the Sverdlovsk Region dated December 16, 2008 N 2-245/08, according to which Ch. filed a claim with the Turinsky District Court against the Blagoveshchensk Kindergarten MDOU for the restoration of violated rights. From the case materials it is known that since May 14, 2007, she worked in the institution as a teacher at 0.65 wages without drawing up an employment contract. In August and September 2008, the plaintiff was on annual paid leave, after which she was not allowed to work; her duties were performed by another teacher, who replaced Ch. during her vacation. After this, Ch. carried out instructions from the manager that were not related to the educational process, namely, she worked as a laborer in the kitchen. Ch. did not give consent to change her labor function. Ch. asked to recover lost earnings (since she received less wages due to the transfer), compensation for moral damages, attorney fees, and travel expenses associated with trips to court.
The representative of the defendant T. did not admit the claims; she explained in court that she transferred Ch. to the position of a general worker 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 d. M., who has a diploma from the Irbit Pedagogical School, was hired in Ch.’s place. There was no written statement from Ch. about his consent to be transferred to the position of a general worker in the kitchen.
The court, having examined the case materials, drew attention to the following. From May 2007 to September 2008, Ch. filled the position of teacher at the institution at 0.65 rates 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 hired for this position on a permanent basis, as indicated in the order dated July 1, 2008, although there were no vacant positions in the institution. After Ch. returned from vacation, on the basis of an order dated October 1, 2008, she was transferred to the position of an auxiliary worker in the kitchen at 0.5 rate, although Ch. did not give written consent to the transfer. The court indicated that this translation was carried out in violation of legal requirements.
The court decided to partially satisfy Ch.’s claim:
- reinstate Ch. in the position of teacher at the Blagoveshchensk Kindergarten at 0.65 rates;
- to recover from the defendant in favor of Ch. the average earnings for the period from September 22, 2008 to December 16, 2008 in the amount of 4,634.62 rubles. minus amounts subject to withholding in accordance with the law, compensation for moral damage in the amount of 1,000 rubles, procedural costs in the amount of 6,000 rubles;
- collect from the defendant a state duty in the amount of 400 rubles.
Summarizing the above, 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 such arise, to win the case in court.
Please note that refusal to perform work during a transfer carried out in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered absenteeism. However, one should take into account para. 5 hours 1 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, according to which an employee cannot be subject 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, except for cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules 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, an employee’s refusal to temporarily transfer to another job in the manner established by Art. 72.2 of the Labor Code of the Russian Federation, for the reasons stated above, is justified.