Temporary transfers to another job based on deadlines. Temporary transfer to another job: Labor Code of the Russian Federation

What is a temporary transfer to another job? How to draw it up correctly and what documents are needed to prepare it? In our material we will look at what terms an employee and employer need to know, how the transfer process works and other nuances of this event.

What terms do you need to know?

Temporary transfer to another job is a procedure that allows the employer and employee to resolve a number of common issues. However, when carrying out such events, it is important to pay attention to all the documents that are drawn up in this case, since the presence of errors in the documents can have serious consequences for employers and for the employee himself.

Therefore, before transferring your employee, you need to clarify all the nuances of such an event in order to minimize the risks of errors and omissions. Moreover, such information will be useful to both employees and company specialists in order to understand not only their responsibilities, but also their rights.

In order to correctly carry out a temporary transfer, it is necessary to accurately know the terms and concepts of the Labor Code of the Russian Federation in this area, which will minimize errors. The main terms include:

The concept of "translation".
Translation deadlines.
Agreement.
Employment contract.

Let's take a closer look at each of these concepts.

Term	Description
Translation	Appointment of an employee to a specific translation position, although it is not necessary that the specialist will perform identical duties. Regardless of the situation, the transfer will require the agreement of the employee himself.
Transfer Agreement	A document that must be drawn up in two copies - it includes the main points of the translation. It is important that both parties - the employee and the employer - sign the document, otherwise the agreement will be illegal.
Transfer deadline	Must be discussed with the employee separately. The term refers to the period during which the translation work will be completed.
Employment contract	A document that reflects information about the rights, duties, and responsibilities between employees. If transferred for some time, the TD may be suspended for a certain period.

The translation could be:

Temporary. It is usually carried out if the employer wants to keep the employee’s job, but cannot employ him.
Permanent.

The purpose of the translation – what is it for?

You should study in advance what the grounds and reasons for transferring a specialist may be. Most often this happens within the same company. The main reasons include:

Expansion or reduction of a production facility.
Solving problems in matters of career growth.
Conducting personnel certification, in connection with which the employee is promoted or demoted.
There are medical conditions that prevent the employee from performing any duties.

However, it is worth remembering that a permanent transfer can be carried out if the employee himself agrees. According to the Labor Code of the Russian Federation, a company employee may not agree to a transfer if it does not meet the conditions contained in a previously concluded agreement.

But with regards to temporary transfer, different rules apply. For example, transfer can be carried out without fail in the event of emergency situations, for example, epidemics, natural disasters, etc.

Important: if we are talking about a pregnant employee, then it is impossible to transfer her on a temporary transfer even in the event of an emergency without consent.

Legal grounds for transfer - what does the Labor Code of the Russian Federation say?

The main legislative document is the Labor Code of the Russian Federation, which reflects all the nuances of processing a translation. The Labor Code of the Russian Federation defines the following articles in the field of translation:

It lists the grounds for changing the terms of a previously drawn up employment contract.
The procedure for transferring a specialist is covered.
The grounds for transfer for an unlimited period are described.
Nuances of translation in the presence of medical indicators.
The main points that relate to changes in the employment contract due to changes in organizational conditions are described.
When there is a change of owner.
The reasons for the employee's removal are established.

Temporary transfer to another job - algorithm of actions

Carrying out such work requires compliance with a certain order of registration. Let's take a closer look at what everything looks like.

Decor

First, you need to notify the employee of the planned action by issuing an order or instruction, which should list the reasons for the transfer. It is recommended to designate the persons who are responsible for processing this transfer and indicate in it the date by which all formalities must be resolved. The employee must read the order and confirm his consent to the transfer.

Next, an additional agreement to the contract is concluded, in which the parties must specify the terms of the transfer, the name of the new position, the amount of payment, etc. The whole process ends with the execution of an order in the T-5 form, which the employee must familiarize himself with before the transfer.

Depending on who makes the decision to transfer, the need to obtain consent from the employee is determined. If the Labor Code of the Russian Federation does not stipulate the need to obtain such consent, then you just need to make an entry in the labor report about the transfer and transfer the employee.

We make an entry in the work book

According to the Labor Code of the Russian Federation, the law does not provide for the need to make an entry in the labor record. For example, imagine a situation where the head of a company worked on a temporary transfer and wants a record of this to be included in his employment record. You can also request to receive a copy of the transfer order or an additional agreement to the existing contract.

It often happens that an employee remains in a new place even after the end of the temporary transfer period, that is, it turns out that the employee will continue to work in one position from the same date, but the information will be entered when the transfer order is issued.

Often, HR department specialists solve this problem differently: in column three, where the position and department are usually indicated, they write down the date from which the temporary transfer is carried out, and in the 4th column a reference to the director’s orders is written.

How can I return to my previous responsibilities?

Temporary work involves the employee returning to his permanent duties. Most often, for this, the head of the enterprise signs an order stating from what date and which specialist will work at the workplace after the expiration of the temporary transfer agreement.

But even in the absence of such a document, the employee can still return to his previous workplace, since the transfer order is no longer in force. Consequently, both parties return to their previous provisions, that is, the employer has the obligation to allow his employee to work in his specialty.

Nuances of temporary transfer

When making a voluntary transfer, the reasons can be any, but things are a little different when transferring without the consent of the employee.

Such an event will be legal for a month in the following situations:

Production downtime.
Possibility to avoid damage to property.
Replacement of a temporarily absent specialist.

True, in all these cases there is an exception. For example, if we are talking about low-skilled labor (that is, when transferring to a lower position), consent from a specialist will be required.

In addition to the consent of the employee himself, some other conditions must be met:

Lack of medical evidence to work in another position.
The employee's qualifications.
The translation process is formalized in accordance with all legal regulations.

In contact with

This term refers to the movement of an employee to another position, to another department or location. The transfer can be carried out on an ongoing basis or for a certain period of time. It can only be carried out with the consent of the person, except for cases specifically specified 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 translation procedure is as follows:

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

If, after the end of the transfer period, the employee remains at the new job by default, that is, neither party has expressed a desire to return him to his previous position, then such a transfer becomes permanent. To do this, you need to prepare the following documents:

Another addition to the employment contract, in the form of an agreement that the temporary transfer is changed to permanent;
An order stating a change in the time of transfer.

Note! If the transfer was made to a vacant position with the wording “until the vacancy is filled,” the 1-year period 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 formalize another transfer.

If a temporary worker is transferred to another temporary job, the registration procedure will not change. The only thing that the HR department must take into account is 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 unlimited.

Temporary transfer of an employee to replace an absent employee

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

The registration procedure will be the same as in the previous case.

Note! In the case of transfer to the place of an absent employee, it is better not to put a specific date as the end date, but to indicate the event that will mark the end of the transfer period. For example: “The transfer is carried out from October 1, 2017 until the end of the period of incapacity for work and the return to work of manager A.V. Yesenina.”

Temporary transfer to another job without the employee’s consent

The Labor Code of the Russian Federation provides 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 that pose a risk to the life and health of surrounding people;
in case of downtime, as well as to eliminate the risk of damage and loss of property, if these circumstances were caused by the factors given above.

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

Is a temporary transfer included in the work book?

In accordance with Article 66 of the Labor Code, a 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 period of time, no entry is made in the work book.

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 temporary turns into permanent, and, therefore, it must be reflected in the work book.

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

order for temporary transfer (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 an entry has already been made in the work record about a temporary transfer that has not become permanent, then it is corrected in the same way as all incorrect entries in the work record book.

Conclusion

Temporary transfer involves transferring an employee to perform another job for a certain period. After completion of this period, he returns to his previous job, or the transfer becomes permanent. The transfer time should not exceed 1 year, except in cases where the transfer is made to a temporarily vacant position.

In any organization, whether large or small, there may be a need to temporarily transfer an employee to another job. How to properly formalize a transfer, in which cases the employee’s consent is required, in which it is not, what are the various consequences of incorrect translation and execution - we will look into this article.

Temporary transfer of an employee to another job should not be confused with part-time and part-time work. Let's first consider the difference between temporary transfer, part-time and part-time.

Part-time job

The concept of “part-time work” is contained in Art. 282 Labor Code of the Russian Federation. Part-time work is the performance by an employee of other paid work in his free time, and the number of such part-time jobs is not limited, the main thing is not to the detriment of the main job. Part-time work is reflected in the employment contract indicating that it is not the main one. There are two types of part-time work:

internal part-time work is working for the same employer, in the same organization;
external part-time work is working for other employers, in other organizations.

Combination

The concept of “combination” is contained in Art. 60.2 Labor Code of the Russian Federation. Combination is the performance by an employee of a larger amount of work, for example, fulfilling the duties of an absent employee. At the same time, the employee is not released from his main job and works part-time not in his free time, but during the main working hours. In other words, the employee is under a lot of workload. At the same time, the employee can perform additional work in both one and another profession. When combining, it is not necessary to conclude a new employment contract, unlike part-time work.

Temporary transfer to another job

Temporary transfer of an employee to another job occurs by agreement of the parties, concluded in writing. The concept of temporary transfer is contained in Art. 72.2 Labor Code of the Russian Federation. An employee may be temporarily transferred to another job with the same employer for a period of up to one year. A situation may arise that a transfer is required during the absence of another employee and its duration does not fit into one year, then the deadline will be set with the wording “until the main employee returns to work.”

If, after the expiration of the temporary transfer period, the employee does not demand to be returned to his previous job, the “old” job is not provided by the employer and the employee continues to work, then the transfer is automatically considered permanent.

That is, in contrast to part-time and part-time work, with a temporary transfer there is no additional burden beyond the main job (neither from your employer nor from another), it does not bring additional income to the employee and, accordingly, is often simply not interesting to him.

Let's consider three cases of temporary transfer: by agreement with the employer, by production necessity and forced transfer.

Temporary transfer by agreement of the parties

Temporary transfer by agreement of the parties is probably the simplest transfer. It seems like nothing complicated, but the employer needs to pay attention to the correct execution of such a transfer.

Let's consider a situation where the main employee either got sick, or went on a business trip for a couple of months, or went on a long vacation, or on a regular vacation, and there was a need to replace such an employee. Here it is possible to temporarily transfer an employee to an absentee position, since, for example, there are urgent unfinished issues, production will stop without signing any documents, or the employee has quit altogether, and while a replacement is found, certain work needs to be done.

Unlike part-time work, the temporary transfer of an employee is not displayed in the work book; everything happens solely by agreement of the parties. Although, on the other hand, it is necessary to display the temporary transfer in personnel documents, namely in the employee’s personal card in the T-2 form (clause 4 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).

Before transferring a temporary employee to another job, you must inform him about this. For what period is not established by law, so there is no need to wait certain days or weeks. Such a message (notification) can be either in writing or orally, the main thing is to obtain the employee’s consent that he is not against it.

After obtaining consent, an additional agreement to the employment contract is concluded between the employer and the employee, in which it is necessary to indicate the basis for the transfer, for how long the transfer is being carried out, the level of wages, if it is subject to change, and working hours, if it is different from the present. The level of wages is also not determined by law and remains at the discretion of the employer and employee, i.e. by agreement.

It is advisable to clearly indicate the time of temporary transfer in such an additional agreement. For example, if this is a business trip for another employee or a production need, you can specify a certain date by which the transfer will be made; if before a certain event, this event is indicated, for example, an employee returning from vacation, accepting a new employee for this position, etc.

After completing the additional agreement, the manager issues an order for the temporary transfer of the employee in form No. T-5 or T-5a (these forms are approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). In such an order, the employer should indicate the reasons for the temporary transfer, the work performed, the period and wages.

The employer should not forget that this order, like others, must be familiarized to the employee against signature. This familiarization and signing of the order by the employee will constitute the official receipt of his consent to the temporary transfer.

Employers should also take note of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, which clearly states that an employee can be temporarily transferred to another job only with the same employer with whom he has an employment relationship, and the work should not be contraindicated for health reasons. It is also stipulated that if, when transferring to another job in the event of downtime, the need to prevent destruction or damage to property, or replacing a temporarily absent employee, the employee will have to perform work of a lower qualification, then such a transfer by virtue of Part 3 of Art. 72.2 of the Labor Code of the Russian Federation is possible only with the written consent of the employee (clause 18 of this Resolution).

An error would also be the action of the employer if, for example, an employee was temporarily transferred to another job and then fired because the employer took another employee to take his previous place. Do not forget that during a temporary transfer, the employee retains his job and he can safely return after the agreed period. This situation was considered by the Constitutional Court of the Russian Federation, and this conclusion is contained in the Determination of the Constitutional Court of the Russian Federation dated December 24, 2013 No. 1912-O: “The court explained that Art. 72.2 of the Labor Code of the Russian Federation provides for cases of temporary transfer to another job, and by written agreement of the parties, an employee can replace a temporarily absent employee, who, in accordance with the law, retains his place of work until this employee returns to work. At the end of the transfer period, the employee is guaranteed the provision of the previous job, but if the employee is not provided with the previous job, he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent. Such regulation also cannot be considered as violating the constitutional rights of citizens.”

Temporary transfer due to production needs

The concept of temporary transfer in case of production necessity is also contained in Art. 72.2 Labor Code of the Russian Federation. Two cases are considered:

in the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic and in any exceptional cases threatening the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer to prevent these cases or eliminate their consequences;
transfer of an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer is also permitted in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or temporary replacement absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances.

It is also clarified that temporary transfer to a job requiring lower qualifications is permitted only with the written consent of the employee. And also in case of temporary transfers on the above grounds, the level of wages is determined according to the work performed, but not lower than the average earnings for the previous job.

When making such a transfer in the event of a production necessity, the employer should take into account that if disputes arise with employees, he will be required to prove the existence of circumstances that led to a temporary transfer due to these circumstances. This is directly stated in paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

Consider, for example, the following situation: some kind of disaster (accident) occurred at work, the employer issued an order for the temporary transfer of workers to eliminate the consequences of the disaster (accident) and did not indicate the reason for the transfer, and the employee did not agree to transfer, even temporarily, to work to eliminate a disaster (accident). Subsequently, due to the fact that the employee refused to temporarily transfer to another job, the employer fired him. Is it legal in this situation to dismiss an employee because of his refusal to temporarily transfer?

To resolve this issue, let us turn to the Determination of the Kemerovo Regional Court dated February 29, 2012 No. 33-1817: “...When considering the case, the court came to the conclusion that the employer had grounds for transferring the employee, that is, circumstances that jeopardize life and normal living conditions population or part thereof. The court included the deformation of the support, which can lead to rock collapse and death, as well as the piling of the conveyor belt, which can lead to smoke, fire and fire, as such circumstances.

However, when considering the case, the defendant (employer) did not provide evidence of the existence of extraordinary circumstances that necessitated the temporary transfer of the employee without consent to work not stipulated by the employment contract.

About the presence of any emergency circumstances that allow the transfer of workers in accordance with Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, not mentioned in the order.

In addition, such involvement of an employee in work by the employer was not properly formalized, since the order applies to miners, and he worked as a mining machine operator, and therefore an order must be issued in form No. T-5 indicating the reason for his transfer. In this case, the basis for the transfer is of fundamental importance; the order must be supported by relevant documents, otherwise the employee may refuse the transfer.

Russian legislation does not establish an employee’s obligation to be at the workplace in the event of an illegal transfer. Under such circumstances, his refusal to transfer illegally could not be considered a violation of labor discipline, and therefore imposing a disciplinary sanction in the form of dismissal on him was illegal.

In paragraph 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” it is prescribed that when considering a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to begin it, the employer is obliged to provide evidence demonstrating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee must be reinstated at his previous job.

Taking into account the above circumstances of the case and the requirements of the law, what is significant for resolving the case is whether the employer complied with the law when transferring the employee to a job not stipulated by the employment contract.

Having established these circumstances, the court of first instance came to the conclusion that there was a case provided for in Part 2 of Art. 72.2 of the Labor Code of the Russian Federation, endangering the life or normal living conditions of the entire population or part of it, and therefore considered that the employer had the right to transfer workers without their consent to work not stipulated by the employment contract in order to prevent this incident.”

Based on the analysis of this case, employers should think about the fact that for a correct temporary transfer in case of production necessity, they should either obtain the employee’s consent to the temporary transfer, or independently issue an order for the temporary transfer of the employee/employees with a mandatory indication of the reason for such transfer. If the temporary transfer order is correctly executed, indicating the reason, timing or specific event, the employer will be able to avoid misunderstandings on the part of employees, as well as protect itself from litigation.

It should also be taken into account that the employee has the right to refuse the transfer if it is dangerous to his life and health. An employee’s unreasonable refusal of a temporary transfer in these situations will be regarded as a disciplinary offense, and absence from work will be regarded as absenteeism. This is clearly stated in paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

However, by virtue of para. 5 hours 1 tbsp. 219, part 7 art. 220 of the Labor Code of the Russian Federation, an employee cannot be subject to disciplinary action for refusing to perform work if a danger to his life and health arises due to violation of labor protection requirements, except in cases established by federal laws, until such a danger is eliminated, or from performing work with harmful and ( or) dangerous working conditions not provided for in the employment contract. Since the Labor Code of the Russian Federation does not contain rules prohibiting an employee from refusing to perform such work even when they are caused by a transfer on the above grounds, the employee’s refusal to temporarily transfer in accordance with Art. 72.2 of the Labor Code of the Russian Federation for the reasons mentioned above is justified.

Temporary transfer in the cases specified above is allowed only for a period of up to one month and should serve the purpose of preventing these cases or eliminating their consequences.

Conclusion

In conclusion, I would like to note that temporary transfer is carried out by agreement of the parties, but this is at best. Then you just need to formalize it correctly so that there are no future claims against each other.

When temporarily transferring an employee in case of production necessity, it is necessary to indicate in the order itself why such a temporary transfer is necessary. We should not forget that if the functions of the employment contract do not provide for the conditions for preventing the consequences of any disasters or the transfer to work is in no way related to the skills, knowledge, skills of the employee and the transfer will actually threaten his life and health, only in this case the employee will be able to refuse the transfer. I repeat, an employee’s unreasonable refusal of a temporary transfer due to production necessity if there is a real need for it in the organization is not allowed.

Accordingly, by taking into account all the necessary written documentation and understanding when it is possible or necessary to temporarily transfer an employee to another job, the employer will protect itself from disputes with employees.

Irina Chuchkina - legal consultant at IC U-Soft LLC, Regional Information Center of the ConsultantPlus Network. Editorial staff of the magazine "Kadrovik"

Personnel policy, Corporate culture

This term is usually understood as a change in the labor functions of an employee with a permanent or temporary feature, as well as his transfer to another structural unit.

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Nowadays, you can find the main transfers of employees due to:

carrying out reconstruction of enterprises;
carrying out modernized work on it;
change of technological processes;
disruptions in the supply process;
relocation of the company to other territorial spaces;

To change the basic working conditions only with the approval of the employee, by:

place of work;
the nature of the work;
labor function;
wages;
labor regime;
its volume;
benefits and the like.

To carry out this action within one enterprise, however, when there is a change in the structure of subordination or with other similar characteristics, the management of the company must have documented consent from the employee for this, except in cases where this is not required.

If consent was not obtained, but the employee began to perform new functions, this action will be considered legally completed. However, the company administration is obliged to document this, for example, by obtaining a visa for the employee on the relevant order or at his request.

Important! If the employee then does not agree with such changes, but is already performing new functions, he can always go to court to appeal this situation.

All actions involving changes in the company's workforce must be carried out according to orders, with the appropriate entries being made in their work books.

The difference between translation and displacement

We have decided on the above concept. Now let’s look at the accompanying term “movement”. This is also a transfer, but in its case there will be no contradictions with the current employment contract, both the employee’s qualifications and his specialty and position are preserved. There is no need to obtain his consent. So, it will be:

when changing jobs at the same company,
when changing a structural unit within the same territory where he worked,
when performing their own functions on a new mechanism, different from the old one.

We conclude that translation and movement differ in aggregate characteristics:

“old” and “new” labor formats,
territorial location of the “former” and “new” place of work,
the actual presence of the employee at the “former” and “new” place of work.

Important! There are often cases when movement seems to correspond to its basic characteristics, but can have an impact on the health of the worker. Then this is illegal, except in situations where this is stipulated in advance in the employment contract.

Main types of transfers

Permanent transfer is possible only if there is voluntary and documented approval, transferred upon his application. In a documentary format, it is also possible to sign this action.

In this case, a complete change in his labor function will occur; it is recommended to conclude a new main contract. To obtain consent, endorsed by his signature, after issuing an order document on this action, three working days are legally allocated.

with other job functions or job responsibilities at the same enterprise,
change of workplace simultaneously with a change of territorial location of the company,
change of employer.

Important! In the second case, the company’s management acts as the initiator, and they are obliged to notify the employee of the upcoming changes, against signature, two months before the event; if he refuses, carry out a legal dismissal procedure.

A temporary transfer is possible provided that:

this action is approved by both parties and documented in writing for a period of no more than one year,
on the basis of it, another temporarily absent employee is replaced, while the transferee retains his permanent place of work.

The main distinguishing feature of this action is that if the employee did not receive his previous place and did not demand a return to it, this will become permanent.

Types of temporary transfers

in case of an unforeseen situation, such as an accident at work or due to natural and man-made disasters,
due to the health status of the subordinate,
pregnant employee for medical reasons,
a woman who has a child under 18 months of age,
the requirement of the military registration and enlistment office.

With the written consent of the employee

At the written request of the employee or written consent received from him for a permanent transfer to another employer. This entails the termination of the main contract at the previous place of work.

When, when carrying out such an action, his work schedule, place, previously performed functions, income, regime, etc. will be changed.

In such cases, a corresponding application, additional agreement is signed, or consent is affixed to the order with the employee’s visa.

Not requiring employee consent

More often than others in our country, there is a temporary transfer of an employee when his written approval is not required due to production needs, but for no more than 1 month, and while maintaining the territorial location of his place of work.

This action is legally permissible for:

preventing or eliminating the consequences of natural disasters,
preventing or eliminating the consequences of industrial accidents,
prevention of accidents, downtime, damage to public and state property,
replacing another employee who is not present at the workplace,
in other exceptional moments.

The duration of this action should not be more than 1 month for the entire calendar year.

Important! All exceptional situations that are not predicted in advance have the status of force majeure.

In our labor code, this list of exceptional moments that can be interpreted as a production necessity is not complete, and careless managers use this at their own discretion.

Important! If such actions against an employee do not have distinctive features of production needs, they can be considered illegal.

Temporary transfers mandatory for the employer

These include:

action justified by medical instructions about harm to the health of the worker,
action of a pregnant woman, or breastfeeding, or with a child under 18 months of age,
at the request of the military registration and enlistment office with a call to a training camp.

Important! All other reasons for transfers must be agreed upon by the parties.

The last type of transfer is based on the requirements of a third party. Carried out with the aim of increasing the level of military training of an employee without taking him away from production. In this case, the employee will retain his income at the enterprise for the entire duration of such training.

If the reason for the transfer was an injury received at the enterprise, and through his fault, the employee will retain the previous salary for the entire period.

The second type of transfer is reflected in an entire and separate article of the Labor Code of the Russian Federation - 254. Thus, taking care of the protection of motherhood and childhood, a pregnant woman should not work in hazardous industries or unfavorable conditions. The enterprise is obliged to provide her with more lenient working conditions or be completely exempted from them while maintaining average earnings.

The same situation applies to women who have children under 18 months. In addition, such women should retain all the preferences and benefits that existed at their previous place of work.

When the period for such a transfer expires, the administration of the enterprise must initiate the return of the employee to his old place of work, otherwise their actions will be illegal.

The procedure for registering a temporary transfer to another job

It requires the following documentation in the same order:

employee’s application for transfer, memo format possible,
corresponding order,
additional agreement amending the main labor document,
actual relocation proposal,
making relevant entries in the employee’s work book.

Important! Each individual situation will have its own set of documentation or step-by-step procedure.

Does an employee have the right to refuse a transfer?

According to the letter of the law, an employee can refuse this if:

new work functions can cause damage to his health or life,
new work responsibilities are more difficult and harmful than those prescribed in his main work document.

This is stated in the Labor Code of the Russian Federation, and will not give the employer the right to impose a disciplinary sanction on this employee.

If the refusal is justified by other reasons, they are recognized as unfounded and such that they entail the imposition of disciplinary sanctions and absenteeism if they are not started.

1. Article 72.2 of the Labor Code of the Russian Federation is specifically devoted to temporary transfer to another job. It provides for the possibility of temporary transfer to another job by agreement of the parties (Part 1) and at the initiative of the employer without the consent of the employee in cases provided for by law (Parts 2, 3).

2. In accordance with Part 1 of the commented article, by agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer. The law does not name specific grounds on which such a transfer is allowed, and therefore it is possible for any reason, incl. both for a vacant position (place of work) with a given employer, and to replace a temporarily absent employee within the period established by law. As a general rule, this period should not exceed one year. An exception is established for cases of transfer to another job to replace a temporarily absent employee, who, in accordance with the law, retains his place of work. In this case, the transfer period may be more than one year. It depends on the time the replaced employee returns to work.

Within the time limits established by law, the parties determine a specific period during which the employee will perform work not stipulated at the conclusion of the employment contract.

Upon expiration of the period of temporary transfer to another job determined by the parties, the employer may, and at the request of the employee is obliged to provide him with the previous job. However, if the temporary transfer period has expired, and the employee does not insist on providing the previous job and continues to work, then the condition on the temporary nature of the transfer loses force. In this case, work in the position (profession, specialty) to which the employee was temporarily transferred is considered permanent for him and the employer does not have the right to transfer him to his previous or another job without the employee’s consent.

3. A temporary transfer to another job should be distinguished from the performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee, along with the work stipulated by the employment contract. In contrast to a temporary transfer to another job, which is allowed both to a vacant position (place of work) and to replace a temporarily absent employee whose position (place of work) is retained, the performance by an employee of the duties of a temporarily absent employee without release from his main duties is allowed only to replace an employee whose position (place of work) is retained (for example, during a business trip, vacation, temporary disability). The performance by an employee, on behalf of the employer, of the duties of a temporarily absent employee, along with the work stipulated by the employment contract, in contrast to a temporary transfer to another job, is not limited by any period. This period is determined by agreement of the parties. An agreement between the parties on a temporary transfer to another job cannot be terminated early unilaterally by the employee or the employer, as is the case when the employee, along with his work, performs the duties of a temporarily absent employee (see commentary to Article 60.2).

4. Part 2 of the commented article provides the grounds on which the employer has the right to temporarily transfer an employee to another job not stipulated by the employment contract, without his consent. The law does not establish an exhaustive list of such grounds, but clearly defines their nature - these are exceptional cases that threaten the life or normal living conditions of the entire population or part of it. These include, in particular, natural or man-made disasters, industrial accidents, accidents, floods, earthquakes, etc.

Only in the presence of the specified emergency circumstances is it possible to temporarily transfer an employee without his consent to another job and in case of downtime, which is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature, as well as if it is necessary to prevent destruction or damage to property or to replacing an absent employee (Part 3 of Article 72.2 of the Labor Code of the Russian Federation). In other words, a temporary transfer of an employee without his consent to a job not stipulated by an employment contract can be considered justified only if it is necessary due to emergency circumstances that threaten the life or normal living conditions of the entire population or part of it. If the need for a temporary transfer of an employee to another job is caused, for example, by reasons such as equipment breakdown, untimely delivery of raw materials or materials, etc., and this is not related to emergency circumstances provided for in Part 2 of the commented article, then such a transfer is only allowed by agreement of the parties. As the Plenum of the Supreme Court of the Russian Federation explained in Resolution No. 2 of March 17, 2004, when applying Part 2 and Part 3 of the commented article, which allows for the temporary transfer of an employee to another job without his consent, the courts should keep in mind that the obligation to prove the existence The circumstances with which the law connects the possibility of such a transfer are assigned to the employer (clause 17).

5. The duration of one (each) transfer to another job without the employee’s consent in cases where such a transfer is necessary due to emergency circumstances threatening the life or normal living conditions of the population should not exceed one month. However, such a translation may be of a repeated nature. This rule also applies to cases of temporary transfer to another job to replace an absent employee, i.e. transfer to another job to replace an absent employee due to emergency circumstances is not limited to one month during the calendar year.

The job to which the employee is transferred due to the above circumstances (including to replace a temporarily absent employee) must correspond to his qualifications. If in this situation a transfer to another job requiring lower qualifications is necessary, then such a transfer is permitted only with the written consent of the employee.

6. Temporary transfer of an employee to another job in all cases provided for in Article 72.2 of the Labor Code of the Russian Federation is allowed only with the same employer with whom he has an employment relationship. Moreover, when transferring an employee to another job without his consent, i.e. in the cases provided for in Part 2 and Part 3 of this article, remuneration must be made according to the work performed, but not lower than the average earnings for the previous job.

In all cases, transfer to another job that is contraindicated for the employee for health reasons is unacceptable.

7. This article gives the employer the unconditional right to transfer employees without their consent to work not stipulated by the employment contract in exceptional cases that threaten the life or normal living conditions of the population. In this regard, the employee cannot refuse such a transfer if it is carried out in accordance with established requirements and the employee does not have valid reasons for refusing the transfer.

Refusal to perform work during a transfer carried out in compliance with the law is recognized as a violation of labor discipline, and absence from work is considered absenteeism.

It should be taken into account that, by virtue of para. 5 tbsp. 219, part 7 art. 220 of the Labor Code, an employee cannot be subject to disciplinary action for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, except in cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with hazardous and (or) dangerous working conditions not provided for in the employment contract. Since the Labor Code does not contain rules prohibiting an employee from exercising this right even when the performance of such work is caused by a transfer due to emergency circumstances, the employee’s refusal to temporarily transfer to another job in accordance with Article 72.2 of the Labor Code of the Russian Federation for the above reasons is justified (see paragraph. 19 Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).