Transfer of an employee to a position below. Transfer to a lower-paid job at the initiative of the employer. How to deal with personal income tax for the businessman himself

Today we are witnessing the rapid development of technology, the emergence of new levels of industrial production, the commissioning of numerous enterprises and the testing of 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

Translation to lower paid job at the initiative of the employer - 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 options actions:

1. withdrawal of the previous position and offer to the employee to take another position in the new structure;
   
2. 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).
  
• Transfer by decision of the certification commission, which comes 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, a decrease in career ladder illegal, and the employer should take advantage of 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 the various changes and 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.

The first two weeks any employee has legal right demand that he be paid the same salary, and if such a transfer to another position was carried out due to reasons beyond the employee’s control, then he must be paid the same salary for a whole month.

In general, any transfer of employees to lower-paid positions must be based on serious reasons, and the ideal solution for both parties would be to transfer the person to another position. This way, the employer will be reliably insured against lawsuits, and the employee – against unexpected dismissal.

But this video will tell you how to transfer a part-time worker to the main job:

In the new conditions, many enterprises are trying to reorganize unprofitable production or simply optimize the work of staff. All this is accompanied by either a reduction in the number of employees, or the reduction of a number of positions and the creation of new ones corresponding to the new profile, or a reshuffle of personnel. How should an employer transfer employees to new jobs, also with a salary reduction?

It’s worth mentioning right away that the material will not talk about cases of forced transfer provided for by Art. 170 and 178 of the Labor Code, as well as on short-term transfer due to production needs (Articles 33, 34 of the Labor Code), and transfer to another enterprise.

Depending on what exactly the employer intends to change in the employee’s work, the legislator has provided for the possibility of relocation and transfer itself. If changes concern a workplace, a structural unit in the same area, a mechanism or unit, but within the same enterprise, specialty, qualification or position, the employee’s consent is not required. This is considered a movement of the employee, carried out only on the basis of an order from the employer (preferably justified).

However, if changes in the status of an employee are associated with a change of position (specialty, place of work, etc.), this will already be a change in essential working conditions, which cannot but require the consent of the employee (Article 32 of the Labor Code). In this case, experts offer two options:

1. reduce the position (staffing unit) in which the employee previously worked and offer him work in another position in another structural unit (provisions of Article 49-2 of the Labor Code);
2. transfer the employee to another (probably lower-paid) position with his consent (transfer itself).

The algorithm of actions of the employer in the first case (even if we are talking about the reduction of some positions and the introduction of others) is similar to that described in the mentioned material. Therefore, the publication decided to pay attention to the translation procedure.

In essence, a transfer is a change in essential working conditions. Therefore, the employer is not bound by the will of the employee, because in case of disagreement, the employment contract is simply terminated on the basis of clause 6 of Art. 36 Labor Code. That is, the employee has little choice: either agree to the transfer or look for a new job, which is often unacceptable in a crisis.

Translation issues are regulated by Art. 32 Labor Code. The basis for optimizing the work of personnel is the fairly broadly interpreted concept of changes in the organization of production and labor, the decision to implement which is made by the employer (in agreement with the trade union, if there is one).

In order for their consequences to be legitimate, they must first be recorded, that is, an appropriate order (instruction) must be issued, which indicates the rationale and content of the changes, and also gives instructions to officials to implement such changes, including optimizing the work of personnel.

Despite the fact that in Art. 32 transfer issues are dealt with separately from changes in essential working conditions; it is generally accepted that a similar procedure must be followed when transferring. That is, two months before the implementation of changes, employees who are offered a transfer should be notified of all changes, including salary changes.

To do this, they must be familiarized with the order on changes in the organization of production and labor in person, against signature and in front of witnesses. The employee has the right to disagree with the transfer (slave labor is prohibited), but in doing so he will be fired. By the way, the employer should carefully observe all formalities, since it is quite likely that employees who disagree with the employer’s decision will go to court. This is especially true for the justification for the decision to transfer, because it may be declared invalid by the court, as a result of which the employee will be reinstated (clause 31 of the resolution of the Plenum of the Armed Forces of Ukraine “On the practice of considering labor disputes by courts”).

Next, after 2 months, you should issue a corresponding transfer order, make changes to the employment contract and make a corresponding entry in work book. If employees do not give consent and are subject to dismissal, an order is issued for their dismissal under clause 6 of Art. 36 (with payment of severance pay) or according to paragraph 1 of Art. 36, and information is also submitted to the employment service (according to paragraph 4 of Article 20 of the Law “On Employment”).

An employee of the HR department, in a conversation with a correspondent of the publication, pointed out some of the difficulties in implementing this method. In particular, the employer cannot always justify its decision to transfer in the event of a claim from a dissatisfied employee. In this case, according to the expert, it is much easier to invite the employee to write an application for transfer by at will(but for this it is necessary to offer him more or less acceptable conditions). Then the employer will not have to wait two months to transfer him. If the employee does not agree, any of the options described above can be applied at the employer’s discretion.

By the way, the employer should not forget about the provisions of Art. 114 of the Labor Code, which obliges to pay an employee transferred to a lower-paid job the same salary for two weeks, and in the case of a transfer with a reduction in salary for reasons independent of the employee - for 2 months.

Conclusion

So, you can transfer an employee to another (lower paid) position either by making a change in staffing table(by reducing old positions and introducing new positions (staffing units), or by obtaining the employee’s consent to transfer to another position. The employee’s refusal in both cases entails termination employment contract.

The best option for the latter is for the employee to write a transfer application at his own request, which does not require a two-month wait to make changes.

In general, if the employer decides to carry out a reorganization (optimization of personnel work, rationalization of jobs, re-profiling, etc.), the only decision that depends on the employee is whether to continue labor Relations with him in a new status or stop them altogether.

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

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

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

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

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

Article 74 of the Labor Code of the Russian Federation

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

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

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

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

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

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

How certification for compliance with qualifications is carried out

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

Key points to pay attention to:

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

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

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

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

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

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

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

Important to remember:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Demotion as a disciplinary sanction

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

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

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

According to part one of Art. 72.1 of the Labor Code of the Russian Federation, transfer to another job is a permanent or temporary change in the labor function of an 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 a transfer to work in another location with an employer. Transfer to another job is permitted only with the written consent of the employee, except for the cases provided for in parts two and three of Art. 72.2 Labor Code of the Russian Federation.

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

Labor legislation contains a requirement that earnings 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 the employment relationship continues without changes.

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

In accordance with part three of Art. 81 of the Labor Code of the Russian Federation on this basis is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid 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.

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.

At the same time, working conditions change significantly, which are not mentioned in the employment contract. Is it legal to transfer to another job, and what needs to be taken into account?

General information

Transfer of an employee to another job can be temporary or permanent. Translation purposes:

It is allowed to transfer to another job only after the written consent of the employee. But if there was no such consent, and the employee started a new job, then the transfer is legal.

The procedure must be formalized by order of the manager and an entry in the work book. The Labor Code of the Russian Federation provides for temporary transfer to another job.

Unlike a permanent transfer, a temporary transfer does not require a written agreement from the employee. Conditions for such a transfer:

• the basis should only be an exceptional case when there is a threat to life;
• the duration cannot be more than a month;
• without consent, you can only transfer to work with the same employer;
• work activity must correspond to qualifications;
• if the work may harm the health of the employee, then transfer to such a position is not allowed;
• labor must be paid in accordance with the work performed. Below wage it can not be.

If the above conditions are met, then such a transfer is considered legal, the employee does not have the right to refuse the employer.

During the transition to another job, the employee does not leave his employer, but only changes the type of activity. In what cases is the procedure allowed:

• to reduce or increase the number of workers;
• when opening new branches of the organization;
• For career growth employee;
• in case of forced removal of an employee from his position.

The employer is responsible for the translation. You must inform the employee of your decision in advance.

What it is

Transfer to another job is a change labor functions employee for a certain period of time or on an ongoing basis.

The employee is provided with work that is not provided for. At the same time, the conditions of its activity change.

No matter what changes workplace or remains the same, a distinction is made between transfer to another area and to another job, but together with the enterprise.

There are internal and external. The first type is a change in the employee’s field of activity on a temporary or permanent basis. The employer does not change. External transfer – transition to a new manager.

Such a transfer requires the employee's consent. How to arrange an external transfer to another job? The scheme is simple:

1. The employee writes a statement.
2. The employer turns to the future manager with a request to hire an employee.
3. The reply is in process.
4. If approved, transfer to a new employer.

Also, the transfer can be temporary or permanent (has no deadline). Types of permanent:

• when the employer does not change;
• transfer to another job together with the manager. This may be another organization, locality. The employment contract does not change;
• external translation.

With a temporary transfer, work activity changes for a certain period. It happens by mutual consent of the employer and employee, without the consent of the employee, or as necessary for the manager.

Advantages and disadvantages of the procedure

The process of transferring an employee to another position has both disadvantages and advantages. Minuses:

• the new employer can set a salary that will be lower than the previous one;
• long-term adaptation to a new workplace is possible;
• Conflicts with colleagues cannot be ruled out.

Pros:

• guaranteed employment;
• no probationary period.

For the guarantees to apply, the employee must apply to a new employer within a month from the date of his previous job.

Before agreeing to a transfer, you need to think it over carefully, weigh all the advantages and disadvantages.

Current regulatory framework

Dedicated to transferring to another job. The Law clarifies the concept of translation, the basic conditions for the procedure and its procedure.

Its shape is arbitrary. In the application, indicate the reasons for the transfer, new position. Next, sign and submit to your boss for review.

If the transfer is temporary, then the employer and employee draw up an employment contract (some of its clauses change).

If the transfer is permanent, then it is better to terminate the contract and draw up another one at the new workplace. The employer must issue an order, form T-5.

In the column “Reason for transfer” it is indicated – “At the initiative of the employee.” The employee has the right to demand a photocopy of the order.

If for a lower paid job

If the transfer involves a lower-paid position, then this is possible in some cases:

• as a result;
• dismissal due to lack of qualifications;
• staff reduction;
• mutual consent of the parties.

In these cases, the transfer is legal. There are also illegal ones that you need to know so that the employee’s rights are not violated.

The manager may demote an employee due to misconduct. This is illegal, the manager should simply reprimand or deprive.

If the translation is legal, then its procedure is as follows:

An employee can sue the manager, so all grounds for transfer to a lower-paid position must be justified.

For the first 2 weeks, the employee receives the same salary as in the previous place (with mutual agreement on the transfer). If the reasons did not depend on the employee, then the previous salary is paid for 2 months.

According to medical report

This procedure is considered as a transfer at the initiative of third parties - entities that do not belong to the organization.

With the written consent of the employee, the employer is obliged to transfer him to work, the conditions of which will not harm his health.

If the employee refuses to transfer, or the employer does not have a position, then he has the right to suspend the employee from work for the period specified in the doctors’ report. At the same time, the position remains with him, the salary is not paid.

To a permanent job from a temporary one

At this type transfer there is no need to write an order of dismissal and then acceptance to a new job.

It is enough to follow a number of steps:

Formation of an application (sample)

An application from an employee is completed in standard form. At the top right, indicate the name of the organization, details of the manager and from whom the application is addressed.

In the text you must write about your desire to transfer to another job, indicating the position. You can also indicate the reason for the transfer.

At the end, sign the application, date it and submit it to the HR department. Based on this, a transfer decree is issued.

Order – important document, confirming the transfer of an employee from one job or position to another. Its form is standard, approved by law - .

The document is filled out by a HR employee after the written consent of the employee. If the transfer is temporary, then you must indicate the end date of the new job.

It is also important to indicate the employee’s details, the reason for his transfer, and all details. At the end, be sure to have the order certified by the head of the organization and the employee himself.

Is it possible for an employee to refuse?

There are cases when an employee refuses to be transferred to another position and threatens. What to do in this case? The employer must offer him another vacancy in writing.

It must correspond to the qualifications of the employee and his health, and not harm. If this work is absent, the manager may offer a lower-paid position.

If the employee does not agree with this, then the employer has every reason to terminate the employment contract with him.

If it is intended to transfer an employee to another location, and he refuses, then he can be dismissed on the basis of Article 77.

But! If the employer himself does not move to this area, then the employee’s refusal cannot be the reason for terminating the contract with him.

After termination of the employment contract, the manager is obliged to pay severance pay, the amount of which is two weeks’ salary of the employee.

The following entry is made in the work book - dismissed due to refusal to transfer to another job.

Thus, transfer from one job to another is possible only with the written consent of the employee. Without consent, the transfer will be considered illegal.

However, there are grounds for transfer for which the employee’s consent is not required; they are prescribed in Article 72 Labor Code Russian Federation.

If an employee approves of his transfer, then he must write an agreement addressed to the manager; if this is his personal initiative, then an application requesting a transfer to another position.

Companies are faced with a situation where it is necessary to transfer an employee who simultaneously performs several official duties to a permanent position. ContentsWhat you need to know How to correctly transfer a part-time worker to the main place of work Therefore, the question arises whether it is possible to arrange a transfer of a part-time worker...

During the operation of the company, its management may take actions to transfer employees on a permanent or temporary basis. Changes may affect the location of implementation labor activity, position, working hours, salary, benefits. Personnel can be transferred to those areas where the greatest...

The article will reveal basic information regarding the transfer of an employee to another job. Is it possible to carry out the process without his consent, what is needed for this and what are the legal grounds for the transfer - more on this later. There are times when an employer needs to transfer an employee to another position or to another...