Today we are seeing fast development technologies, the emergence of new levels industrial production, putting into operation numerous enterprises and testing innovations that radically change economic development states and societies.
That is why companies are interested in eliminating unprofitable production and optimizing the work of staff to the maximum.
Transfer to a lower paying 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 the question of what to do with specific ones. Employers, having analyzed all possible options, stop on the fact that it is best to either reduce the number of working people, 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 executives and human resources 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 the implementation of work duties, but the employee still remains in the same company and does not need advanced training or a change of specialty. The usual movement 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, 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 options at once:
- withdrawal of the previous position and an 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 a lower pay
Transfer is not 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 a person of the right to, which is prescribed in labor legislation.
Regardless of the real motives of the employer, there is a list of legitimate reasons for transferring employees to a lower paid position:
- Transfer to the profession that is more suitable for a person for health reasons (carried out on the basis of the usual).
- Translation by decision attestation commission, which will come to the conclusion that the level of qualifications is insufficient for the position held. Such a dismissal is actually a dismissal for inconsistency with the position held by the employee.
- General working staff.
- Translation perfect.
You should be aware of cases in which transfer to a lower position is clearly illegal, because some employers engage in such transfers as punishment for a particular misconduct. In such a situation, demotion is illegal, and the employer should take advantage of a 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.
The next stage is the preparation of a regulation on restructuring in the organization of production, which the employee should 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 workers refuse to change conditions and file lawsuits. In order for the court not to recognize the documents as insolvent, they must definitely be in order, otherwise former employee achieve re-employment.
Two months later, the employer must publish an order to transfer a person, amend the previously concluded employment contract and make a number of amendments to . Official dismissal orders are also being issued for those who do not agree with the new conditions.
Will 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 good reasons
In the event that an employee files a lawsuit, the employer must have a good reason for transferring the employee to a lower-paid position. Therefore, employers often persuade employees to write an application for the voluntary transfer of a person to another position on their own.
Naturally, an interested employer must offer a person the conditions to which he agrees, but this procedure will not take as long as three 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 wage, and if such a transfer to another position is made due to reasons beyond the control of the employee, then he must be paid the salary in the same amount for a whole month.
LABOR LAW OPINION
on the issue of unilateral transfer of employees, including transfer to a lower-paid position
Question: Is the head of an organization entitled 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 Charter of the federal public institution it is stated: "The head of the FGU ....: appoints and dismisses employees, distributes duties 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 conflicts 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 state institution. Based on this, the head of the organization cannot transfer an employee to a lower position and / or a lower paid job and salary without his consent. Thus, the 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 when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate structural unit and its location;
- labor function (work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work assigned to the employee).
The date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the term 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;
- conditions of remuneration (including the amount tariff rate or salary (official salary) of an employee, additional payments, allowances and incentive payments);
Mode of working time and rest time (if for this employee it differs from general rules operating for this employer);
Compensation for hard work and work with harmful and (or) hazardous conditions labor, if the employee is hired under appropriate conditions, indicating the characteristics of working conditions at the workplace;
Conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);
Condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;
Based on article 72 of the Labor Code of the Russian Federation:
"Change certain parties the terms of the employment contract, including transfer to another job, is allowed only by agreement of the parties to the employment contract, except for the 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 a transfer to another, including a lower paid, job is allowed 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 with the employer. Transfer to another job is allowed only with the written consent of the employee.
Cases when the consent of the employee for the 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: “It does not require the consent of the employee to move him from the same employer to another workplace, to another structural unit located in the same area, entrusting him to 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. TKRF: “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 that endanger the life or normal living conditions of the entire population or part of it, an 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.
The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage of property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage to property or to replace a temporarily absent employee is caused by extraordinary circumstances. At the same time, transfer to work requiring lower qualifications is allowed 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 to transfer or the employer does not have a corresponding job, then the employer is obliged to remove the employee from work for the entire period specified in the medical report while maintaining the place of work (positions). During the period of absence from work wage the employee is not accrued, with the exception of cases provided for by this Code, other federal laws, a collective agreement, agreements, an employment contract.
If, in accordance with a medical report, an employee needs to be temporarily transferred to another job for a period of more than four months or permanent translation, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with paragraph 8 of the first part of Article 77 of this Code.
Employment contract with the heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants, needy according to the medical report in a temporary or permanent transfer to another job, in case of refusal to transfer or if the employer has no 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 the employment contract with them, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to these employees, except for the cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract.
If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with clause 8 of part one of Article 77 of this Code ".
Article 74
“In the case when, for reasons related to changes in organizational or technological working conditions (changes in engineering and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, except for changes in the work function of the employee.
The employer is obliged to notify the employee in writing about upcoming changes in the terms of the employment contract determined by the parties, as well as about the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.
If the employee does not agree to work in the new conditions, the employer is obliged in writing to offer him another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health status. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part 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 obligation of the employer to compensate the employee material damage caused as a result of unlawful deprivation of his opportunity to work
“The employer is obliged to compensate the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if the earnings are not received as a result of:
unlawful removal of an employee from work, his dismissal or transfer to another job».
Article 394
“In case of recognition of dismissal or transfer to another job illegal the employee must be reinstated in his previous job by the body considering the individual labor dispute.
The body considering an individual labor dispute decides on the payment of the average wage to the employee for the entire period of forced absenteeism or difference in earnings for the entire time of performing the lower paid work.
At the request of the employee, the body considering an individual labor dispute may limit itself to making a decision on the recovery in favor of the employee of the compensation specified in part two of this article.
The decision on the reinstatement of an illegally dismissed employee at work, on the reinstatement of an employee illegally transferred to another job at the previous job, is subject to immediate execution. If the employer delays the execution of such a decision, the decision-making body issues a ruling on payment to the employee for the entire time of the delay in the execution of the decision of average earnings or the difference in earnings.
Thus, the transfer of 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 "YURISTOKRAT"
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 transfer and its consequences for each of the parties below.
Labor Code of the Russian Federation on transfer to another job
Speaking of a temporary transfer to another job, it should be noted that in this case, we mean providing the employee with another paid job with the same employer. Depending on the specific situation and the reasons for the transfer, the temporary job offered may require qualifications both lower and equal to those that the employee already has.
It must also be remembered that the transfer of a person to another workplace (whether it be another structural unit or just equipment / unit) cannot be considered a transfer to another job, if the terms of the employment contract originally concluded between the employer and the employee are not violated.
The duration of a temporary transfer to another job directly depends on the reasons for which it is caused, but usually its period is from a month to a year (in certain situations, its increase is not ruled out).
IMPORTANT! According to general provisions Labor Code of the Russian Federation, even a temporary transfer to another job can take place only with the consent of the employee (although in some cases this condition may not be observed, as evidenced by Article 72.2 of the Labor Code).
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, which is necessary in the state;
- one of the employees (permanent) is temporarily absent from his workplace, but at the same time, his workplace remains in accordance with the current law (for example, when he is on regular leave or parental leave, on sick leave, etc.) .
The duration of the temporary performance of duties of another employee in such situations should not, according to the provisions of the law, exceed 1 year, although in this case there are exceptions. So, for example, if one employee performs the duties of another (temporarily absent, but retaining this position), the period of temporary transfer to another job can be extended for the entire period of absence of the main employee.
Additional agreement on transfer to another position
Of course, from a legal point of view, it is impossible to force a person against his will to perform other work, that is, one that is not directly provided for by an employment contract concluded with him earlier and does not correspond to his job description. Therefore, in order to endow the temporary transfer with legal force, in addition to the existing contract, an additional agreement is also concluded on the transfer to another position. This document specifies new position and the period during which the agreement will be valid. In addition, the transferred employee is instructed, he is introduced to job description and other local acts associated with the new position. This procedure must be followed in view of the changing nature labor activity employee.
The additional agreement concluded regarding the temporary transfer to another job is a kind of guarantee that the employee, as soon as the agreement expires, can return to his previous position, the right to which he retains. If this does not happen, i.e. the employee will not be provided with the previous job, but he will continue to work in a temporary place without 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 are interested in whether it is possible to temporarily transfer to another job, and even with a lower wage, initiated directly by the employer?
Here it is important to understand what exactly should be understood as the initiative of the employer. If he offers the employee to terminate the existing employment contract (or, by mutual agreement, change the conditions reflected in it) and the employee is satisfied with such a proposal (including a reduction in salary), then the transfer is possible and does not create any problems for either one or the other sides. If the employee does not express a desire to switch to a lower-paid job, then he has the right to refuse the offer of the employer and continue to perform official duties stipulated in his employment contract.
Transfer to a lower-paid job is possible, for example, if the employee's position is subject to reduction in the manner prescribed by Russian labor legislation. IN similar situation after notification of the reduction, the employer must offer the employee other vacancies available to him (including those with lower wages). And if the latter is satisfied with the proposed position, then he can accept the offer and continue to perform labor functions for this employer, even despite the lower level of remuneration.
Forced transfer to work requiring lower qualifications
Article 72.2 of the Labor Code provides for situations where it is possible to transfer an employee to another position without obtaining consent from him. This can happen in 2 cases:
- If the transfer is due to a catastrophe or accident (regardless of whether it is natural or man-made), an accident, a natural disaster (flood, earthquake, fire, etc.) or any other phenomenon that endangers the life of the population in whole or in part. In this case, the term of the transfer cannot exceed 1 calendar month.
- If the reason for the temporary transfer is simple (i.e. the suspension of the company / organization or its constituent parts for one reason or another of an economic / technical / technological or organizational nature) or the need to ensure the safety of property belonging to the employer or to replace a temporarily absent employee. And this is provided that the reason for the downtime or the need to ensure safety / replacement was the emergency events mentioned earlier in paragraph 1. In situations of this kind, the duration of the transfer should also not exceed 1 calendar month.
As for the inability of the employee to perform the labor functions that the employer is trying to impute to him due to health problems, the transfer in this case is simply impossible (Article 72.1 of the Labor Code) even if the employer has grounds for temporarily transferring the employee to another job without obtaining consent from the last.
Also, a temporary transfer to another job without obtaining the consent of the employee is not possible if it requires a lower qualification. This means that it must be appropriate to its already existing level - otherwise, it is necessary to obtain consent for a transfer of this kind from the employee in writing.
For the time during which the employee performs other duties, the employer must pay him a salary on the terms reflected in the supplementary agreement. We emphasize that the earnings of employees, in accordance with the provisions of par. 4 tbsp. 72.2 of the Labor Code of the Russian Federation, when they are temporarily transferred to another job, it should not be lower than the average monthly salary at the main place of work. When calculating it, they are guided by the general procedure, in which, in addition to the salary, other payments are taken into account, in particular bonuses, additional payments, allowances, compensations and remunerations received by the employee during the accounting period. Of course, only those cash, which are received from a specific employer and are provided for by labor legislation, internal acts of the organization and an employment contract.
There are times 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 consent of the employee? 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 outside the administrative boundaries of the former locality).
The transfer can be temporary or permanent. By general rules For the transfer of an employee, his consent is required. But the legislation also provides for cases when an employee can be transferred without his consent.
Labor law prohibits transferring an employee to work if a new job is contraindicated for him for medical reasons.
Transfer to another job without the consent of the employee
Without the consent of the employee, he can be transferred only in the event of dangerous circumstances that threaten the lives of the population.
These 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 consent of the employee is possible if the above situations have caused:
- downtime (temporary suspension of work due to organizational, technological, economic or technical reasons);
- the need to prevent damage to property;
- replacement of 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 consent of the employee 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 needs: without the consent of the employee?
There is no definition of the term "production necessity" in the Labor Code. As a rule, in practice, it means changes in technological or organizational working conditions. They are mentioned in Art. 74 of the 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 labor functions of the employee.
Therefore, in case of production necessity (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 with the employer.
The employer must notify the employee of such changes in advance - two months in advance. If the employee does not agree to such changes, then 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 proposals of the employer, then the employment contract with him is terminated.
Can a manager accept an employee for one position and then transfer the same employee to another position with a lower salary? How to arrange it correctly? The transfer of an employee is due to the fact that his qualifications do not correspond to his position.
According to the first part of Art. 72.1 of the Labor Code of the Russian Federation, a transfer to another job is a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work in another area with the employer. Transfer to another job is allowed only with the written consent of the employee, with the exception of cases provided for in parts two and three of Art. 72.2 of the Labor Code of the Russian Federation.
An employee can also be transferred to a lower-paid job. According to the fourth part of Art. 72.1 of the Labor Code of the Russian Federation, it is not allowed to transfer an employee to work that is contraindicated for him for health reasons. As we understood from the question, we are talking transfer to another permanent job.
Labor legislation contains a requirement that wages comply with new job average earnings from the 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, 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 specifies all the changes to be 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 in the unified form N T-5, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1.
If the employer is the initiator of the transfer, then by offering a lower paid position, he can explain to the employee the reason for changing the labor function. However, the employer does not have the right to insist on a permanent transfer. You cannot force an employee to sign an agreement to transfer to another job. If the employee does not want to move to a lower paid position, then labor Relations continue without change.
At the same time, if the employee does not correspond to 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 of the Labor Code of the Russian Federation. At the same time, the discrepancy between the employee of the position held or the work performed due to insufficient qualifications must be confirmed by the results of certification.
In accordance with the third part of Art. 81 of the Labor Code of the Russian Federation on this basis, it 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 a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health status. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
Prepared answer:
Legal Consulting Service Expert GARANT
Komarova Victoria
Checked answer:
Reviewer of the Legal Consulting Service GARANT
Mikhailov Ivan
Company "Garant", Moscow
The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service. For getting detailed information about the service, contact your manager.
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