Today we are seeing fast development technologies, the emergence of new levels industrial production, launching numerous enterprises and testing innovations that radically change economic development state and society.
That is why companies are interested in eliminating unprofitable production and optimizing staff work to the maximum.
Transfer to a lower paid job
Transfer to a lower-paid job at the initiative of the employer is always an unpleasant moment for the employee
In such conditions, all employers naturally have a question about what to do with specific ones. Employers, having analyzed all possible options, decide that it is best to either reduce the number of people working, or reduce existing positions and introduce new ones along with them.
It is also possible to transfer employees to a completely different specialty instead of the one they previously occupied. Thus, company bosses and HR managers may need to transfer individual employees to new jobs and at the same time reduce their wages. Actions depend primarily on what the employer is interested in and what he wants to change.
Sometimes changes affect only the place of work or certain mechanisms for carrying out work duties, but the employee still remains in the same company and does not require advanced training or a change of specialty. The usual transfer of personnel is a commonplace phenomenon for organizations, and it is carried out on the basis of an order.
If during the restructuring a change in place of work is affected, then this can already be called a change in working conditions, and this requires the consent of the worker himself. In this situation, there are several possible courses of action:
- withdrawal of the previous position and offer to the employee to take another position in the new structure;
- transfer of a person to another position with his consent.
Features of transferring an employee to a position with lower pay
No transfer is possible without the consent of the employee!
The transfer is a restructuring of existing ones, and for its implementation there must be the consent of the employee himself. At the same time, the employee simply has no choice, and he must either agree to the transfer or look for a new job.
The dismissal of a particular employee due to refusal to transfer to another job does not deprive the person of the right to employment, which is prescribed in labor legislation.
Regardless of the employer’s real motives, there is a list of legitimate reasons for transferring employees to a lower-paid position:
- Transfer to a profession that is more suitable for a person due to health reasons (carried out on the basis of the usual).
- Translation by decision certification commission, which will come to the conclusion that the level of qualifications is insufficient for the position held. Such dismissal is actually dismissal for inadequacy of the position held by the employee.
- General working staff.
- Translation, perfect.
You should be aware of cases in which a transfer to a lower position is clearly illegal, because some employers engage in such transfers as punishment for a particular offense. In such a situation, demotion down the career ladder is illegal, and the employer should use dismissal or reprimand.
What is included in the procedure for transferring an employee to a lower-paid job?
In case of disagreement, the employee is promised dismissal
Before making a transfer, it is imperative to carry out a preparatory operation so that the employee knows directly about the transfer, about various changes and about what his new one will be like.
The next stage is drawing up a regulation on restructuring in the organization of production, which the employee must familiarize himself with. An employee who does not like the new conditions may refuse, but in this case he will be fired.
Any employer can face surprises, and some employees refuse to change their terms and conditions and file lawsuits. In order for the court not to recognize the documents as insolvent, they must clearly be in order, otherwise former employee will achieve reinstatement in the workplace.
After two months, the employer must publish an order to transfer the person, amend the previously concluded employment contract and make a number of amendments to. Official dismissal orders are also issued for those who do not agree with the new conditions.
Could there be problems for employers who decide to make such changes?
Transfer to a lower-paid job at the initiative of the employer must have compelling reasons
If an employee files a lawsuit, the employer must have a compelling reason to transfer the employee to a lower-paying position. Therefore, employers often persuade employees to independently write an application for the voluntary transfer of a person to another position.
Naturally, the interested employer must offer the person conditions to which he agrees, but this procedure will not take three whole months and will save extra time.
For the first two weeks, any employee has the legal right to demand that he be paid the same salary, and if such a transfer to another position is carried out due to reasons beyond the employee’s control, then he must be paid the same salary for a whole month.
CONCLUSION ON LABOR LAW
on the issue of unilateral transfer of employees, including transfer to a lower paid position
Question: Does the head of an organization have the right to transfer an employee, including his deputy, to another, lower position and/or lower paid job without the written consent of the employee, in the case when the Federal Charter government agency states: “The head of the Federal State Institution....: appoints and dismisses employees, distributes responsibilities among his deputies.”
Answer:
In accordance with Article 5 of the Labor Code of the Russian Federation, “norms labor law contained in other federal laws, as well as local regulations, must comply with the Labor Code. In case of contradictions between the Labor Code and other federal law, as well as local normative act containing labor law norms, the Labor Code is applied.” The norms of the Labor Code have greater legal force than the Charter of a federal government institution. Based on this, the head of the organization cannot transfer an employee to a lower position and/or lower paid job and salary without his consent. Thus, unilateral transfer of an employee to a lower-paid position is illegal.
In accordance with Article 57 of the Labor Code of the Russian Federation, the essential terms of an employment contract include:
Place of work, and in the case where an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another area - place of work indicating the separate structural unit and its location;
- labor function (work according to the position in accordance with staffing table, profession, specialty indicating qualifications; specific type of work assigned to the employee).
The date of commencement of work, and in the case where a fixed-term employment contract is concluded, also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;
- terms of remuneration (including the amount tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);
Working hours and rest hours (if for a given employee it differs from general rules, operating with this employer);
Compensation for hard work and work with harmful and (or) dangerous conditions labor, if the employee is hired under appropriate conditions, indicating the characteristics of working conditions in the workplace;
Conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, other nature of work);
Condition for compulsory social insurance of an employee in accordance with this Code and others federal laws;
Based on Article 72 of the Labor Code of the Russian Federation:
"Change determined by the parties terms of the employment contract, including transfer to another job, is allowed only by agreement of the parties to the employment contract, except for cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.”
Article 72.1. The Labor Code of the Russian Federation also states that transfer to another, including lower-paid, job is permitted only with the consent of the employee:
“Transfer to another job - permanent or temporary change labor function employee and (or) structural unit in which the employee works (if structural subdivision was specified in the employment contract), while continuing to work for the same employer, as well as transferring to work in another area together with the employer. Transfer to another job is permitted only with the written consent of the employee."
Cases when the employee’s consent to a transfer is not required are also provided for in the Labor Code of the Russian Federation:
“Article 72.1 of the Labor Code of the Russian Federation: “The employee’s consent is not required to move him from the same employer to another workplace, to another structural unit located in the same area, entrusting him with work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.” And the position and salary are certain parties to the terms of the employment contract.
Article 72.2. TCRF: “In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases threatening the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer in order to prevent these cases or eliminate their consequences.
Transfer of 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 is also permitted in cases 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 temporary replacement absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances. At the same time, transfer to a job requiring lower qualifications is permitted only with the written consent of the employee.”
Article 73 of the Labor Code of the Russian Federation:
“If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his job. (positions). During the period of suspension from work wage the employee is not accrued, except in cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.
If, in accordance with a medical report, the employee needs a temporary transfer to another job for a period of more than four months or permanent translation, then if he refuses the transfer or the employer does not have the corresponding work, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code.
Employment contract with heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants, in need according to a medical report in a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the corresponding job, it is terminated in accordance with paragraph 8 of part one of Article 77 of this Code. 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 the cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.
If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code "
Article 74. Changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions
“In the event that, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be preserved, they may be changed at the initiative of the employer, with the exception of changes in the employee’s labor function.
The employer is obliged to notify the employee in writing of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing no later than two months, unless otherwise provided by this Code.
If the employee does not agree to work under the new conditions, then the employer is obliged to offer him in writing 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 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.
In the absence of the specified work or the employee’s refusal of the offered work, the employment contract is terminated in accordance with paragraph 7 of part one of Article 77 of this Code.”
The employer is liable for illegal translation of the Labor Code of the Russian Federation :
Article 234 of the Labor Code of the Russian Federation. The employer's obligation to compensate the employee material damage caused as a result of illegal deprivation of his opportunity to work
“The employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if earnings are not received as a result of:
illegal removal of an employee from work, his dismissal or transfer to another job».
Article 394. Making decisions on labor disputes regarding dismissal and transfer to another job
“In case of recognition of dismissal or transfer to another job illegal the employee must be reinstated at his previous job by the body considering the individual labor dispute.
The body considering an individual labor dispute makes a decision to pay the employee average earnings for the entire period of forced absence or differences in earnings for the entire period of performing lower-paid work.
At the request of the employee, the body considering an individual labor dispute may limit itself to making a decision to recover in favor of the employee the compensation specified in part two of this article.
The decision to reinstate an illegally dismissed employee or to reinstate an employee who was illegally transferred to another job to his previous job is subject to immediate execution. If the employer delays the execution of such a decision, the body that made the decision makes a determination to pay the employee the average salary or difference in earnings for the entire time of delay in execution of the decision.”
Thus, transferring an employee to a lower-paid job without his consent is illegal and entails liability for the head of the organization established by labor legislation.
Senior lawyer
Legal Bureau "JURISTOCRAT"
Panteleeva Yulia Viktorovna
Tel. 8-926-522-85-41
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Temporary transfer to another job is a special set of legal relations between an employee and an employer, clearly regulated by the legislation of the Russian Federation. We will talk about the process of such a translation and its consequences for each of the parties below.
Labor Code of the Russian Federation on transfer to another job
Speaking about temporary transfer to another job, it should be noted that in this case we mean providing the employee with another paid job with the same employer. Depending on the specific situation and the reasons for the transfer, the temporary job offered may require qualifications either lower or equal to those that the employee already has.
It must also be remembered that the transfer of a person to another workplace (be it another structural unit or just equipment/unit) cannot be considered a transfer to another job unless the terms of the employment contract initially concluded between the employer and the employee are violated.
The duration of a temporary transfer to another job directly depends on the reasons that cause it, but usually its duration ranges from a month to a year (in certain situations it cannot be increased).
IMPORTANT! According to general provisions According to the Labor Code of the Russian Federation, even a temporary transfer to another job can only take place with the consent of the employee (although in some cases this condition may not be met, as evidenced by Article 72.2 of the Labor Code).
Usually the reason for such a transfer is situations when:
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- it is not possible to find an employee for a certain position that is needed in the state;
- one of the employees (permanent) is temporarily absent from his workplace, but his workplace is retained in accordance with the current law (for example, when he is on vacation or maternity leave, on sick leave, etc.) .
The duration of temporary performance of official duties of another employee in such situations should not, according to the provisions of the law, exceed 1 year, although in this case there are exceptions. So, for example, if one employee performs the duties of another (temporarily absent, but while retaining this position), the period of temporary transfer to another job can be extended for the entire period of absence of the main employee.
Additional agreement on transfer to another position
Of course, from a legal point of view, it is impossible to force a person against his will to perform other work, that is, one that is not directly provided for in the previously concluded employment contract and does not correspond to his job description. Therefore, in order to give a temporary transfer legal force, in addition to the existing contract, an additional agreement on transfer to another position is also concluded. This document states new position and the period for which the agreement will be valid. In addition, the transferred employee is given instructions and is introduced to job description and others local acts related to the new position. This procedure must be followed due to the change in character labor activity employee.
The concluded additional agreement regarding a temporary transfer to another job is a kind of guarantee that the employee, as soon as the agreement expires, can return to his previous position, the right to which he retains. If this does not happen, i.e. the employee will not be given the previous job, but he will continue to work in a temporary place without making demands for reinstatement in his position, the additional agreement loses its temporary nature and can be considered concluded for an indefinite period.
Transfer to a lower paid job at the initiative of the employer
Many people are interested in whether it is possible to temporarily transfer to another job, and even with lower pay, initiated directly by the employer?
Here it is important to understand what exactly should be understood by the employer’s initiative. If he offers the employee to terminate the existing employment contract (or, by mutual consent, change the conditions reflected in it) and the employee is satisfied with such an offer (including a reduction in salary), then the transfer is possible and does not create any problems for either one or the other sides. If the employee does not express a desire to switch to a lower-paid job, then he has the right to refuse the employer’s offer and continue to perform job responsibilities stipulated in his employment contract.
A transfer to a lower-paid job is possible, for example, if the employee’s position is subject to reduction in the manner prescribed by Russian labor legislation. IN similar situation after notification of a layoff, the employer must offer the employee other available vacancies (including those with lower wages). And if the latter is satisfied with the proposed position, then he can accept the offer and continue to perform labor functions for this employer, even despite the lower level of remuneration.
Forced transfer to a job requiring lower qualifications
Article 72.2 of the Labor Code provides for situations when it is possible to transfer an employee to another position without obtaining his consent. This can happen in 2 cases:
- If the transfer is caused by a catastrophe or accident (regardless of whether it is natural or man-made), an accident, a natural disaster (flood, earthquake, fire, etc.) or any other phenomenon that threatens the life of the population in whole or in part. In this case, the transfer period cannot exceed 1 calendar month.
- If the reason for the temporary transfer is simple (i.e. suspension of the company/organization or its components for one reason or another of an economic/technical/technological or organizational nature) or the need to ensure the safety of property owned by the employer or to replace a temporarily absent employee. And this is provided that the reason for the downtime or the need to ensure safety/replacement was the emergency events mentioned earlier in paragraph 1. In situations of this kind, the duration of the transfer should also not exceed 1 calendar month.
As for the inability of the employee to perform the labor functions that the employer is trying to assign to him due to health problems, a transfer in this case is simply impossible (Article 72.1 of the Labor Code) even if the employer has grounds for temporarily transferring the employee to another job without obtaining consent from the last one.
Also, a temporary transfer to another job without obtaining the employee’s consent is impossible if it requires lower qualifications. This means that it must be consistent with its existing level - otherwise it is necessary to obtain written consent for a transfer of this kind from the employee.
During the time during which the employee performs other duties, the employer must pay him a salary on the terms reflected in the additional agreement. We emphasize that the earnings of employees, in accordance with the provisions of paragraph. 4 tbsp. 72.2 of the Labor Code of the Russian Federation, when temporarily transferred to another job, it should not be lower than the average monthly earnings at the main place of work. When calculating it, they are guided by a general procedure in which, in addition to salary, other payments are taken into account, in particular bonuses, additional payments, allowances, compensation and rewards received by the employee during the accounting period. Of course, the average earnings will only include those cash, which are received from a specific employer and are provided for by labor legislation, internal acts of the organization and the employment contract.
There are cases when an employer decides to transfer an employee to a position whose pay is lower than the previous one. Is it possible to transfer to a lower-paid position without the employee’s consent? Let's try to figure it out.
Transfer to another job
- labor function (change in the type of assigned work);
- a structural unit within the same employer (if such a unit was specified in the employment contract);
- locality together with the employer (moving beyond the administrative boundaries of the previous locality).
The transfer can be temporary or permanent. By general rules To transfer an employee, his consent is required. But the legislation also provides for cases when an employee can be transferred without his consent.
Labor legislation prohibits the transfer of an employee to work if the new job is contraindicated for medical reasons.
Transfer to another job without the employee’s consent
Without the consent of the employee, he can be transferred only in the event of dangerous circumstances that threaten the lives of the population.
Such circumstances include:
- natural or man-made disasters;
- industrial accidents;
- industrial accident;
- earthquake, fire, famine, flood, epizootic or epidemic and other exceptional cases that threaten normal living conditions or the life of the population.
In addition, a temporary transfer without the employee’s consent is possible if the above situations caused:
- downtime (temporary suspension of work for reasons of organizational, technological, economic or technical nature);
- the need to prevent property damage;
- replacing an employee who is temporarily absent.
Transfer in all these cases can be carried out only for the purpose of eliminating or preventing the consequences of emergency circumstances. The period of transfer without the employee’s consent cannot be more than one month.
But even in such exceptional situations, a transfer in which the employee must work in a job requiring lower qualifications is possible only with the written consent of the employee.
Transfer due to production necessity: without the employee’s consent?
The Labor Code does not define the term “production necessity”. As a rule, in practice it means changes in technological or organizational working conditions. They are mentioned in Art. 74 Labor Code of the Russian Federation. In such cases, changes in working conditions are possible without the consent of the employee. But only if they do not relate to the employee’s labor functions.
Therefore, if there is a production need (caused by technological or organizational changes in working conditions), it is possible to transfer an employee without his consent:
- from one structural unit to another within the same company;
- from one locality to another together with the employer.
The employer must notify the employee of such changes in advance - two months in advance. If the employee does not agree with such changes, the employer must offer him another job that he can perform taking into account his state of health.
If there is no such work or if the employee does not agree with the employer’s proposals, then the employment contract with him is terminated.
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're talking about about transfer to another permanent job.
Labor legislation contains a requirement that earnings correspond to new job average earnings from previous work 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 labor Relations continue without change.
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 getting detailed information about the service, please contact your service manager.
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