Temporary transfer to another position. How to correctly arrange a temporary transfer to a vacant position before the replacement of this position by the main employee? Temporary transfer of an employee to replace an absent employee

This term means the movement of an employee to another position, to another department or locality. The transfer can be carried out on an ongoing basis or for a certain period of time. It can be performed only with the consent of the person, except for cases specifically stipulated in the Labor Code of the Russian Federation.

Temporary transfer to a vacant position

Transfers for a certain period of time are regulated by Article 72.2 of the Labor Code of the Russian Federation. It says that by agreement between the parties to the labor relationship, the employee can be transferred to another job, but only for a period not exceeding 12 months.

The order of translation is as follows:

• Drawing up a written agreement supplementing the existing employment contract, stating that the person will be temporarily transferred to another position;
• Registration of a transfer order. As a rule, a unified form T-5 is used for this.

In the case when, after the completion of the transfer period, the employee remains at the new job by default, that is, none of the parties has expressed a desire to return him to his previous position, then such a transfer becomes permanent. To do this, you need to draw up the following documents:

• Another addition to the employment contract, in the form of an agreement that the temporary transfer is changed to a permanent one;
• An order that says about changing the time of transfer.

Note! If the transfer was made to a vacant position with the wording “until the vacancy is filled”, the period of 1 year is still valid. Therefore, in order not to contradict the provisions of article 72.2, the employee must be transferred to his previous position after a year, and then another transfer must be made.

If there is a transfer of a temporary worker to another temporary job, then the procedure for registration will not change. The only thing is that the HR department must take into account that the duration of the transfer should not exceed the termination period of the main contract, otherwise the employee may become permanent, that is, his contract is recognized as indefinite.

Temporary transfer of an employee to replace an absent employee

The case when a temporary transfer is carried out to a staff unit, which already has an employee, but is temporarily absent, is stipulated in the legislation separately. In this case, the transfer period is not limited to 1 year, but the time of absence of the main employee. Accordingly, it may exceed the indicated 12 months. For example, you can make a temporary transfer for three years if the employee went on maternity leave.

The order of registration will be the same as in the previous case.

Note! In the case of a transfer to the place of an absent employee, it is better not to put down a specific number as the end date, but to indicate an event that will indicate the end of the transfer period. For example: "The transfer is carried out from 01.10.2017 until the end of the period of incapacity for work and the manager Esenina A.V. goes to work."

Temporary transfer to another job without the consent of the employee

The Labor Code of the Russian Federation contains a list of factors and conditions under which an employee can be transferred without his consent:

• in the event of natural and man-made disasters, as well as other factors in which there is a risk of a threat to the life and health of people around;
• in the event of downtime, as well as to eliminate the risk of damage and loss of property, if these circumstances were caused by the factors listed above.

Such a transfer can be carried out for a period not exceeding 1 month.

Is a temporary transfer entered in the work book

In accordance with article 66 of the Labor Code, temporary transfer is not included in the list of information that must be reflected in the work book.

This means that when transferring for a certain time, an entry in the work book is not made.

But if, after the expiration of the transfer period, not one of the parties expressed a desire for the employee to return to his previous place of work, then the transfer from a temporary one turns into a permanent one, and, therefore, it must be reflected in the work book.

In this case, the actual date when the employee has transgressed to perform new duties is put down. That is, in fact, the recording will be made later than the specified date. But at the same time, one more point must be taken into account - the details of which order should be entered into the labor document? The legislation does not regulate this issue in any way. But in practice, it is recommended to enter two orders in column 4:

• order to transfer for a time (the date indicated in the document will coincide with the date of transfer);
• an order recognizing the transfer as permanent (this order will contain the date when the transfer becomes permanent).

If, however, an entry has already been made in the work book about the transfer for a time, which has not become permanent, then it is corrected in the same way as all incorrect entries in the work book.

Conclusion

Temporary transfer involves the transfer of an employee to perform another job for a specified period. After the end of this period, he returns to his previous job, or the translation becomes permanent. The transfer time should not exceed 1 year, unless the transfer is made to a temporarily vacant position.

Please tell me how to properly arrange a temporary transfer to a vacant position before the replacement of this position by the main employee. A vacant position of the head of the department was formed in the organization. The management decided to temporarily transfer the employee to this vacant position pending the final decision on filling the vacant position. How to correctly formulate the term of temporary transfer "for the period of absence of the main employee" or for the period until the filling of a vacant position "?

Answer

INTERPRETATION: AN EXAMPLE STEP-BY-STEP PROCEDURE (GENERAL)

According to Part 1 of Art. 72.2 of the Labor Code of the Russian Federation:

"By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, for whom, in accordance with the law, a place is retained work, - until this employee leaves for work. "

1. One of the parties (employee or employer) comes out with the initiative to temporarily transfer the employee to another job.

The initiative can be "oral". And the parties in the negotiations come to an agreement on a temporary transfer.

The idea of ​​a temporary transfer may also have a written form, but this is not necessary.

1.1. If the employee himself comes out with the initiative of a temporary transfer to another job, then he can write an application for his temporary transfer to another job (position). The employee's application is registered in accordance with the procedure established by the employer, for example, in the register of employee applications.

1.2. If the employer comes out with the initiative to temporarily transfer the employee to another job, he may make a written proposal to the employee about the temporary transfer to another job (position). The offer is made in two copies. The offer is registered in accordance with the procedure established by the employer, for example, in the register of notifications and offers to employees. One copy is given to the employee. On the second copy (the copy that remains with the employer), the employee writes that he is familiar with the offer, received one copy of it, sets the date of receipt, signs. If the employee agrees to the transfer, then he can put a "conciliation note" on the employer's proposal or write a statement of consent to the transfer. The employee's application is registered in accordance with the procedure established by the employer, for example, in the register of employee applications.

2. Familiarization of the employee with his job description(for a new position), other local regulatory legal acts directly related to his new job.

The code does not define the procedure for familiarization with local regulations, in practice there are various options:

Information sheets are attached to the local regulatory act, on which employees put signatures confirming familiarization and the dates of familiarization (such sheets are stitched together with the local regulatory act),

Keeping logs of familiarization with local regulations, in which employees put signatures confirming familiarization, and indicate the dates of familiarization.

A certain procedure for familiarization with local regulations can be enshrined in such an act itself. Find out your employer's procedure for familiarizing employees with local regulations before you begin to familiarize an employee with them.

3. Signing a written translation agreement between the employee and the employer (to the employment contract) and, if there are grounds, the signing of an agreement on full liability.

The agreement and the contract are drawn up in two copies (one for each of the parties), if more copies are not provided for this employer.

4. Registration of the transfer agreement and an agreement on full liability in accordance with the procedure established by the employer. For example, an agreement can be registered in the register of agreements to labor contracts with employees, and a full liability agreement - in the register of agreements on full liability with employees.

5. Handing over to the employee his copy of the transfer agreement.

The receipt by the employee of a copy of the agreement must be confirmed by the employee's signature on the copy of the agreement, which is kept by the employer. We recommend that you put the phrase “I have received a copy of the agreement” before signing.

If an agreement on full liability is signed with the employee, then one copy of it is also transferred to the employee.

6. Issuance of an order (instruction) on the transfer of an employee to another job.

7. Registration of this order (instruction) in accordance with the procedure established by the employer, for example, in the register of orders (instructions).

8. Familiarization of the employee with the order (instruction) against signature.

Notes.

* Information about a temporary transfer is not entered in the employee's work book. Therefore, it is recommended to resolve with the employee the issue of issuing him a copy of the order for temporary transfer, duly certified, so that the employee can in the future, if necessary, confirm that he performed this work.

** The issue of entering information about a temporary transfer into a personal card is in practice controversial.

*** At the end of the term of the temporary transfer, an order may be issued on the end of the term of the temporary transfer.

• Book

Often in companies there are situations when an employee needs to be transferred to another position temporarily, until the elimination of the circumstances that caused such a change in the clauses of the employment contract - medical indications, the need for production, etc. Such a transfer requires proper documentation, recalculation of wages. In this article, we will talk about the intricacies of temporary transfer to another job.

Differences between temporary transfer and other types of labor functions

The main legislative provisions of a temporary transfer, regardless of its reasons, are defined in article 72.2 of the Labor Code of the Russian Federation: these provisions apply only if the employee has an employment agreement with the employer and within the same organization with the same employer. If there is a production need to transfer an employee to another employer, then in such a situation, completely different rules apply (with the exception of athletes, but more on that below). Temporary transfer, with the exception of some cases described by federal labor law, is made only with the written consent of the employee with the conclusion of an additional agreement.

Temporary transfer and business trip. Firstly, business trips include travel of an employee by order of the employer for any period of time to carry out business assignments outside the permanent place of permanent work (Article 166 of the Labor Code of the Russian Federation). Such trips are mandatory, and unjustified refusal of them can be considered as a violation of labor discipline, while temporary transfer, as a rule, is possible only with the consent of the employee (by agreement of the parties).

Secondly, unlike a business trip, it can be carried out in the same locality and at the place of work.

Thirdly, a business trip involves the fulfillment of a specific official assignment, and not imposing any other duties on the employee, that is, it does not entail changes in the essential conditions of the labor contract, and transfer to another locality or to another place of work presupposes that the employee regularly performs labor functions during the entire period of the transfer during working hours.

And fourth: the posted worker is not subject to the provisions of the local regulations of the company where he fulfills the instructions of the management, unless otherwise provided by the local regulations of his direct employer. When an employee is transferred temporarily, then the effect of local regulations applies to him in a general manner.

Temporary transfer and part-time job. Do not confuse the temporary transfer of an employee to another job with his combination and combination. The definition of part-time employment is specified in article 282 of the Labor Code of the Russian Federation. It is understood as the implementation by the employee of other paid work activities in his free time from the main job, while the law does not limit the number of such part-time jobs, the main thing is not to the detriment of basic labor duties.

For part-time work, a separate employment contract is concluded with an indication that this activity is not the main one. Part-time job happens:

1. Internal, when they work for the same employer, in the same organization.
2. External, if the citizen works in other organizations and for other employers.

Temporary translation and combination. Note that the temporary transfer to another job must be distinguished not only from the transfer, but also from the performance by the employee on behalf of the employer of the duties of the temporarily absent employee simultaneously with the obligations stipulated by the employment contract, that is, the combination of duties. The concept of "combination" is contained in Art. 60.2 of the Labor Code of the Russian Federation. Here, the law does not limit the term of performance of duties: it is determined by agreement of the parties. In this case, the employee is not released from his main job and fulfills the duties of another employee during the main time, that is, a large load falls on the employee. When combined, an employee can perform additional work in different professions. With this type of employment, the law does not require the conclusion of a new employment agreement, which distinguishes combination from part-time work. In this case, an employee who temporarily replaces an absent employee is made, in accordance with Art. 60.2 and 151 of the Labor Code of the Russian Federation, an additional payment, the amount of which is also established by an agreement between the employee and the employer.

Translation and relocation. The filling of the concepts of "temporary transfer" and "transfer" is associated with the concept of labor function. Its definition is described in article 57 of the Labor Code of the Russian Federation. The labor function is understood

1) work in a particular position, determined by the staffing table, by profession and specialty, with the obligatory indication of the employee's qualification level,

2) the specific type of work activity assigned to the employee.

That is, both permanent and temporary transfer to another job entails a change in the clauses of the labor agreement, since this changes

1) the labor functions of the employee and (or) the department in the structure of the company where he works (if the unit was specified in the labor contract),

2) the place of work itself, if the employee is sent to work in another locality together with the employer, while the employee continues to work for the same employer.

Labor function, place of work are essential conditions of the employment contract, and their changes almost always require the consent of the employee, therefore the transfer is made out by an additional agreement to the employment contract.

Relocation is temporary or permanent, for example, the transfer of an employee within the same organization to another workplace, the assignment of work on a different mechanism does not require the employee's consent, because these actions do not entail changes in labor functions, essential conditions of the employment contract (part 3 of article 72.1 of the Labor Code of the Russian Federation ). These circumstances are also indicated by the Constitutional Court of the Russian Federation in the ruling of June 19, 2007 No. 475-O-O. The conclusions of the judges were made in relation to the norm of Article 72.1 of the previous edition of the Labor Code, which was in force before the entry into force of the Federal Law of June 30, 2006 No. 90-FZ, but they can be taken into account in relation to the current code. This is due to the fact that the legal understanding and content of the relations between the parties to the labor contract during the transfer did not change significantly.

Important! If a structural unit is NOT specified in the employment contract, the transfer of an employee from the same employer to another workplace, to another structural unit located in the same area, is considered a transfer.

Table 1. Differences between translation and relocation

Important! When moving and transferring, it is prohibited to transfer an employee to work that is not suitable for him for health reasons.

Types of temporary transfers

Lawyers distinguish the following types of translation:

Important! As soon as the circumstances of the temporary transfer cease to be effective, the employee is returned to his original place. If the previous job is not provided to the employee, and he does not require it and continues to work at the place of transfer, then the agreement on the temporary nature of the work becomes invalid, and the previously completed transfer becomes permanent. All the rules for making a permanent transfer apply to it - from drawing up an additional agreement to making an entry in the work book, and the date of the transfer is the first day of the temporary transfer.

Note that such behavior of the employer is erroneous, when the employee was dismissed after the end of the transfer time, since another employee was hired in his previous place. It is worth remembering that during a temporary transfer, the employee retains his workplace and he has the right to return to it after the transfer time has elapsed. This case was considered by the Russian Constitutional Court. The conclusion made by the judges is contained in the Definition of the Constitutional Court of the Russian Federation dated 12.24.2013 No. 1912-O, where the court explains that in Art. 72.2 of the Labor Code of the Russian Federation provides for cases of temporary transfer to another job, while, by written agreement of the parties, an employee can replace a temporarily absent employee, and in accordance with regulatory legal acts, he retains his place of work until this employee returns to work. At the end of the transfer period, the employee is guaranteed the return of the previous position, if the employee did not take it and did not demand its provision and continues to work at a temporary place of work, then the condition of the agreement on the urgent nature of the transfer becomes invalid and the transfer is considered permanent.

Table 2. Documenting the temporary transfer

Video - Temporary and permanent transfers to another job

Let's consider some of the features of the temporary transfer of employees to another job in more detail.

Temporary transfer with the consent of the employee

Temporary transfer to another job can be carried out by written agreement of the parties. The employer first offers the employee a vacant position or position where an absent employee needs to be replaced. Then, upon agreement, an additional agreement is concluded on a temporary transfer to another job, position or to another structural unit. The term - up to one year, and if the transfer takes place to the position of a temporarily absent employee - before his appearance in the service. This temporary approach is being used now for the purpose of temporarily filling a vacant position before a permanent employee enters it.

With a temporary transfer, it is also possible to change the amount of wages. This is an essential condition of an employment contract, and the law imposes restrictions on its changes. The limits allowed by part 4 of Art. 72.2 of the Labor Code of the Russian Federation, are defined as follows: wages must not be lower than the average earnings for the previous job. In addition, the same paragraph also stipulates the prohibition of transferring an employee to work that is contraindicated for him for health reasons. But, if there is the consent of the employee, then he can be transferred to work with harmful or dangerous working conditions.

As for the documentary registration of a temporary transfer to another job, the employer issues an appropriate order (order) containing information on the reasons for the temporary transfer, job functions, payment terms and the timing of this transfer.

Download unified form T-5 in .rtf format:

If a temporary transfer is carried out to a vacant position, it is better to determine the end date of the transfer, and if, to replace a temporarily absent employee, it is worth determining the condition upon the occurrence of which the employee will return to his previous job, since the absent employee may leave vacation or sick leave later.

Important! If an employee is transferred to another job or position, he must be familiarized with the job description and other local acts that are important for the performance of this work. In addition, it may be necessary to conduct instruction in the TJ or conclude an agreement on material liability.

Temporary transfer of an employee without the employee's consent

Note that the written consent of the parties is almost always required, with the exception of situations provided for in parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation (their list is exhaustive). Such extraordinary circumstances include natural or man-made disasters, accidents and accidents at work, cataclysms, widespread cattle diseases, epidemics and other exceptional cases that threaten the lives of people or their normal living conditions - in these cases, the employer can transfer the employee to a labor that is not provided for. contract work for up to 1 month to prevent these cases or eliminate their consequences.

The second group of circumstances in which it is possible to transfer an employee without consent is dictated by production necessity. At the initiative of the employer, a temporary transfer is carried out in case of idle time, and also, if it is necessary to prevent the destruction or damage of property, to replace any employee who is temporarily absent, if these cases are caused by extraordinary circumstances. If new job functions require lower qualifications, such a transfer is allowed only with the written consent of the employee.

Important! The employer's initiative in such cases is limited only by a very vague wording, which is not clarified in labor legislation - in this case we are talking about exceptional situations that endanger "the life or normal living conditions of the entire population or part of it." In this part, some employers may abuse their rights.

If the transfer period exceeds the limit established for temporary transfers, then in situations of urgent need the transfer is carried out only with the written consent of the employee. In the labor legislation, nowhere is the number of temporary transfers of an employee per year indicated, since in such exceptional cases work is performed that cannot be foreseen or postponed.

The Plenum of the Supreme Court of the Russian Federation commented on the application of parts 2 and 3 of Art. 72.2 of the Labor Code of the Russian Federation, which allow an urgent transfer of an employee to another job, not coordinated with him: the court once again clarified that the employer is responsible for proving the existence of reasons on the basis of which the transfer can be made.

An example from judicial practice... So, S. since 1999 worked as a cardiovascular surgeon in the Pskov regional hospital. By order of the head physician, he was temporarily transferred without his consent to the clinic of the regional hospital for the post of cardiovascular surgeon. The reason for the transfer was the need to fill a vacant position and in order to prevent threats to the life and health of the population. Considering this transfer illegal, S. refused to fulfill his duties at the clinic. For this, they were disciplined in the form of a reprimand. The court ruled illegal both the reprimand order and the temporary transfer order, since the management of the institution did not provide evidence of extraordinary circumstances that explained the need for temporary transfer without the employee's consent (appeal ruling of the Pskov Regional Court dated 02.10.2012 in case No. 33-1580).

In terms of remuneration in a situation of forced temporary transfer, the state guarantees the following:

1. If the salary for the new job being performed exceeds the average for his regular job, then he is paid the salary for the job performed (in fact, an additional payment is added to his previous salary).
2. If the salary for the work performed in the order of temporary transfer is lower than the average earnings of the employee for the previous job, then he is paid his previous average earnings, determined in accordance with the established procedure).

It should be noted that the employer has the right (but this is not an obligation) to additionally financially stimulate employees who are temporarily transferred to another job without their consent.

Important! If an employee refuses to perform work with a legitimate transfer, then in this case he violates labor discipline, in case of absenteeism, such behavior is recognized as absenteeism.

Right to opt out of forced transfer

On the basis of part 1 of article 219, part 7 of article 220 of the Labor Code of the Russian Federation, an employee cannot be imposed a disciplinary penalty for refusing to perform duties if there is a danger to his life and health due to violation of labor protection requirements, until such danger is eliminated and except for the cases provided for federal law. Also, the employee has the right to refuse without consequences from performing work of a difficult nature, with harmful and (or) dangerous working conditions, if they are not provided for by the labor contract. Note that the Labor Code of the Russian Federation does not contain articles that prohibit employees from using the above right even in a situation where the employee refuses to be temporarily transferred to another job.

Temporary transfer of an employee for health reasons

In accordance with Art. 73 of the Labor Code of the Russian Federation, the employer is obliged to transfer the employee to another job (position), if he needs it in accordance with the medical report. Moreover, other work should not be contraindicated for the employee for health reasons. A medical certificate is issued in accordance with the order established by the Order of the Ministry of Health and Social Development of the Russian Federation of 05/02/2012 No. 441. A sick leave is not considered a medical certificate. Such translation is also carried out with the written consent of the employee. When receiving a medical certificate from an employee, it is necessary to pay attention to the transfer time specified in the certificate, since further actions of the employer depend on this.

If an employee is shown a temporary transfer to another job for up to 4 months, the employer must offer him another job that is suitable for health reasons. In the absence of such or rejection of vacancies by the employee, the employer suspends him from work, retaining his place of work (position) for the entire time specified in the medical certificate. For this, the employer issues an order in any form. The order indicates the period for which the employee is suspended. If the period is not specified, upon admission to work, the personnel service issues a corresponding order.

When an employee is transferred to another job in accordance with a medical certificate for a lower-paid job, the employer retains his previous average earnings for a month from the moment of transfer, and when transferring due to work injuries, the presence of an occupational disease - until the employee leaves work or is permanently lost. ability to work (Article 182 of the Labor Code of the Russian Federation).

If an employee who, in accordance with a medical certificate, needs a temporary transfer to another job for up to 4 months, refuses to transfer or the employer does not have a corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical certificate, while retaining the place of work. (positions). During the period of non-admission to work, the employee's salary is not calculated, with the exception of cases provided for by labor legislation, collective or individual agreements. Note that in case of refusal of vacancies or lack of vacancies for the employer, the employment contract does not terminate, the employee is simply removed from work, as a rule, without salary.

If, in accordance with the medical opinion, the employee needs a temporary transfer to another job for a period of more than 4 months or a permanent transfer, then if he refuses to transfer or if the employer does not have an appropriate job, the employment contract is terminated under clause 8, part 1 of Art. 77 of the Labor Code of the Russian Federation - the employee's refusal to transfer to another job that he needs in accordance with the medical certificate, or the employer does not have the appropriate job. Upon dismissal, in this case, the employee is paid compensation - a two-week average earnings (part 3 of article 178 of the Labor Code of the Russian Federation).

Organization of translation for pregnant women

Translation for medical reasons is regulated by Article 73 of the Labor Code of the Russian Federation, but the special provisions of Article 254 of the Labor Code of the Russian Federation are prioritized, since they regulate the specifics of transfers of pregnant women and workers who have children under 1.5 years of age.

If a woman expecting a child has a medical certificate, then she is temporarily transferred to another job, excluding the influence of unfavorable factors of production, while she retains her earnings from her previous job. Until another position is granted, the pregnant woman is released from work with the preservation of the average earnings for all the working days missed due to waiting for a vacancy at the expense of the employer. A similar guarantee is provided for women with children under the age of one and a half years. The latter, in the event that it is impossible to perform their previous work, are also subject to temporary transfer, upon their application, to another job with wages for the work performed, but not lower than the average earnings for the previous work until the child reaches the age of one and a half years. The employer has no right to refuse to make such transfers.

If the term of the employment agreement with a pregnant woman expires during her pregnancy and it was concluded during the performance of the duties of the absent employee, then the employer is obliged to offer the employee a new position (part 3 of article 261 of the Labor Code of the Russian Federation) for transfer. The law allows the dismissal of a woman at the end of the term of the employment agreement during her pregnancy and the impossibility, with her written approval, of transferring before the end of pregnancy to another job that is available to the employer (free place of the level of the woman's work experience, lower or less paid), the state of health allows her to fulfill the proposed duties. The employer is obliged to offer the pregnant woman all of his legal vacancies in the area. The management of the company is obliged to offer vacancies in other localities, if such an option is provided for by a collective or individual agreement.

If the employee agrees to the transfer, then the parties sign an additional agreement to the old agreement with the introduction of the changed clauses (on the labor function, place of work, the duration of the employment agreement).

Athlete's temporary transfer

Unlike other types of temporary transfer, which are carried out only within the same organization and employer, this is a special type of temporary transfer - it can be carried out to another employer. So, on the basis of Art. 348.4 of the Labor Code of the Russian Federation in cases where the employer is unable to ensure the participation of an athlete in sports competitions, a temporary transfer of an athlete with his written consent is allowed to another employer for a period not exceeding one year, while an agreement has been reached between the employers. In this case, the employer at the place of temporary work concludes a fixed-term employment contract with the athlete in accordance with the requirements of Art. 348.2 of the Labor Code of the Russian Federation. During the transfer, the original employment contract is suspended, but the duration is not interrupted.

If an athlete wants to work part-time in such a situation, then permission must be obtained from both the main and temporary employers.

If a temporary employment contract is terminated early on any of the grounds provided for by law, the contract, the originally concluded contract, is valid in full from the next initial working day after the calendar date on which the termination of the temporary employment contract is associated.

When the term for temporary transfer to another employer expires and the athlete continues to work there, while none of the parties to the agreement requires the termination of the temporary employment contract and the renewal of the initial one, the latter terminates, and the employment contract concluded for the period of temporary transfer is extended for a period determined by by agreement of the parties, and in the absence of such an agreement - for an indefinite period.

Temporary transfer due to the suspension of a special right

Temporary transfer of an employee, whose labor functions are associated with the presence of a special right, license, permit, are the employer's obligation if this right is suspended for up to two months. These are such categories of workers as drivers, hunters, security guards, crew members of a sea vessel, etc. The employer must offer employees all vacancies, including lower-ranking positions, which the employee may occupy, taking into account his state of health. Free places are offered both in the area where the company is located and in another, if it is provided for by the collective and labor agreement. All these offers are carried out in any form. At the same time, an order for suspension from work is not issued, since the employee is transferred to another position. If the employee refused the offered vacancies, then the employer, by order, removes him from work.

It is also necessary to take into account the fact that if the labor contract defines the duties that the employee can perform without a special right, then he is suspended from work only in relation to the performance of specific tasks and functions, and not from work in general.

The employer has the right to terminate an employment contract with an employee who is deprived of a special right for a period of more than two months, but only when he cannot be transferred to other positions (Article 83 of the Labor Code of the Russian Federation). Information about vacant places in the institution is presented to the employee in the form of an offer in any form. On the document, he must write whether he agrees or refuses vacancies. The legislation does not establish the time for the employee to make a decision, but according to the usual interpretation of Article 76 of the Labor Code of the Russian Federation, the employer is obliged to dismiss the employee immediately after receiving information about the suspension of the special right and the impossibility of transferring him to another job. It follows from this that the employee must agree to a vacant position or refuse it at the time of familiarization with the list of vacant positions. In case of consent to the transfer, a dismissal order is not issued, the parties sign an additional agreement to the labor contract, and then an order for the transfer is issued, in case of refusal, the employee is dismissed.

Important! The employer is obliged to offer vacancies that are vacant at the time of suspension (deprivation) of the right, and not those where, for example, the employee is temporarily absent (he is on maternity leave or leave).

The legal nuances of temporary transfer to another job are not limited to the above material. In each case, if it has become the subject of a legal dispute, there may be its own characteristics, therefore, if a particular translation raises questions, it is better to seek advice either from a professional lawyer specializing in labor relations, or to the local branch of the State Labor Inspectorate. ...

Video - How to arrange a transfer to another job

The question was answered
Yu.N. Strogovich,
chief consultant
Office of Constitutional Foundations
labor legislation and social protection
Secretariat of the Constitutional Court of the Russian Federation

Subscriber "KP"
S. B. Lbs,
Balakovo, Saratov region

Expert "KP"
Yu.N. Strogovich

The answer to this question should be sought primarily in the Labor Code of the Russian Federation, which determines the procedure for temporary transfer to another job.
As follows from article 74 of the Labor Code of the Russian Federation, in case of production necessity, the employer, on his own initiative, has the right to transfer an employee for a period of up to 1 month to a job not stipulated by an employment contract in the same organization with wages for the work performed, but not lower than the average earnings for the previous job ... Such translation is allowed 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 an economic, technological, technical or organizational nature), destruction or damage to property, as well as to replace an absent worker... At the same time, the employee cannot be transferred to work that is contraindicated for him for health reasons.
According to clause 17 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", a temporary transfer of an employee without his consent to a job not stipulated by an employment contract to replace an absent employee can be recognized as justified, provided that it was caused by extraordinary circumstances, namely the declaration of a state of emergency or martial law, disaster or threat of disaster (fires, floods, hunger, earthquakes, severe epidemics or epizootics), as well as in other cases that endanger the life or normal living conditions of the entire population or its part, or when failure to take the specified measure could lead to a catastrophe, industrial accident, natural disaster, accident and other adverse consequences.
Consequently, for any other reasons for the transfer, as well as regardless of its reason, provided that the employee will have to perform work of lower qualifications, it is mandatory to obtain a prior written consent from him for the transfer. At the same time, work should not be contraindicated for an employee for health reasons.
It should also be borne in mind that an employee temporarily transferred to another job retains his position for the entire period of temporary performance of another job (that is, we are talking about a fairly short period of time).
A temporary transfer is formalized by an order (order) of the employer, in which the employee makes a record of his consent to the transfer. In this case, no changes to the employment contract are required. In addition, no entry is made about such a temporary transfer in the employee's work book, since in accordance with article 66 of the Labor Code of the Russian Federation, information about the employee, the work he performs, is entered in the work book, transfers to another permanent job and about the dismissal of an employee.
At the same time, as follows from the content of the question, we are talking about the temporary transfer of an employee to vacant position and in this regard the following should be noted.
The initiative for such a transfer usually comes from the employer and is driven by business needs.
If we are talking about a production need caused by any of the above extraordinary reasons, then such a transfer is legal and regulated by article 74 of the Labor Code of the Russian Federation.
At the same time, often the employer, for some reason, for a long period of time, cannot find a suitable candidate for a vacant position and temporarily “closes the loophole” in the way described in the question. This option is definitely not the best one. It seems inappropriate to assess its legitimacy and the degree of "vulnerability" of the employer, since in the event of a conflict with a temporarily transferred employee and the transfer of his resolution to the court, the employer with a fairly high probability will have, at least, to prove the validity of such a transfer; however, it is very difficult to predict the court's decision.
Therefore, in order to avoid possible adverse consequences for the employer, such an option seems to be more rational: to offer the employee to temporarily impose duties on him for a new position in the order of combining professions (positions), to draw up an additional agreement to the employment contract and, on the basis of this, issue a corresponding order ( order). The limitation to a certain period of validity of the said supplementary agreement will allow the employer, during this period, to see how the employee copes with the new job duties (taking into account the prospect of transferring the employee to this position on a permanent basis), and, if necessary, to terminate the said combination.
The wording that should be contained in the supplementary agreement may be, for example, as follows: “In connection with production needs, the employee is assigned additional responsibilities for a vacant position temporarily from June 1, 2005 until the need for position on a permanent basis; reduction of the specified position; other circumstances) ". Or if the employer deems it necessary to limit the performance of duties to a specific date or period - this: “Due to production needs, the employee is assigned additional duties for a vacant position temporarily from July 01, 2005 to July 30, 2005 or until the position is filled in the prescribed manner on a permanent basis ".

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