Temporary transfers to another work grounds 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 and what documents do you need to draw it up? In our material, we will consider what terms an employee and employer need to know, how the translation process goes, 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 certain joint 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 shortcomings. Moreover, such information will be useful to both employees and specialists of the company in order to understand not only their duties, but also their rights.

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

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

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

Term	Description
Translation	Appointment of an employee to a specific translation position, and 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.
Translation Agreement	The document, which must be drawn up in duplicate - it includes the main points of the translation. It is important that both parties - both the employee and the employer, sign the document, otherwise the agreement will be illegal.
Transfer term	Must be negotiated with the employee separately. The term refers to the period during which the translation work will be performed.
Labor contract	A document that reflects information about the rights, duties, responsibilities between employees. When transferring for some time, the TD may be suspended for a certain period.

Translation can be:

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

The purpose of the translation - what is it for?

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

Expansion or decline of the object of production.
Solving problems in career development.
Carrying out personnel appraisal, in connection with which an employee is promoted or demoted.
There are medical indicators, in connection with which the employee cannot perform any duties.

True, 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 comply with the conditions concluded in a previously concluded agreement.

But with regards to the temporary transfer, other rules apply. For example, a transfer can be made without fail in the event of an emergency, such as epidemics, natural disasters, etc.

Important: if we are talking about a pregnant employee, then it is impossible to transfer her by temporary transfer even in the event of an emergency without her 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 the translation. In the Labor Code of the Russian Federation in the field of translation, the following articles are indicated:

It lists the grounds for changing the terms of a previously drawn up employment contract.
The procedure for the transfer of a specialist is highlighted.
The grounds for the 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 changing ownership.
The reasons for the dismissal of the employee 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 it looks like.

Decor

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

Further, an additional agreement is concluded to the contract, in which the parties must prescribe 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, with which the employee must be familiarized 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 record 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. For example, let's imagine a situation where the head of the company worked on a temporary transfer and wants a record of this to be in his labor. You can also demand 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 the same position from the same date, but the information will be entered when issuing the transfer order.

Often, personnel department specialists solve this problem differently: in the third column, 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 link to the director's orders is recorded.

How to return to previous duties?

Temporary work involves the return of the employee to their 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 valid. Consequently, both parties return to their previous provisions, that is, the employer has an obligation to provide his employee with work in his specialty.

Nuances of temporary translation

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

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

Production downtime.
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 observed:

Lack of medical evidence for work in another position.
The employee's qualifications.
The translation process is designed in accordance with all legislative norms.

In contact with

This term refers to the movement of an employee to another position, to another department or locality. The transfer can be carried out on a permanent basis, or for a certain period of time. It can be carried out only with the consent of a person, with the exception of 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 employment relationship, the employee can be transferred to another job, but only for a period not exceeding 12 months.

The translation order is as follows:

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

In the case when, after the end of the transfer period, the employee remains in 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 issue 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 that refers to a change in the transfer time.

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 of the employee, after a year it is necessary to transfer to the previous position, and then issue another transfer.

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

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 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 mark the end of the transfer period. For example: “The transfer is carried out from 10/01/2017 until the end of the period of disability and the manager Esenina A.V. returns to work.”

Temporary transfer to another job without the consent of the employee

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

In this case, the actual date is affixed when the employee violated the performance of new duties. 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? The legislation does not regulate this issue in any way. But in practice, it is recommended to make two orders in column 4:

temporary transfer order (the date indicated in the document will coincide with the transfer date);
an order to recognize 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 workbook about the transfer for a while, which has not become permanent, then it is corrected in the same way as all incorrect entries in the workbook.

Conclusion

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

In any organization, both with a large staff and with a small one, it may be necessary to temporarily transfer an employee to another job. How to arrange a translation correctly, in which cases the consent of the employee is required, in which not, what are the various consequences of incorrect translation and execution - we will understand in this article.

Do not confuse the temporary transfer of an employee to another job with part-time and combination. Consider first the difference between temporary transfer, part-time and combination.

part-time

The concept of "combination" is contained in Art. 282 of the Labor Code of the Russian Federation. A part-time job is the performance by an employee of another paid job in his spare 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 displayed in the employment contract indicating that it is not the main one. Compatibility is of two types:

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

Combination

The concept of "combination" is contained in Art. 60.2 of the Labor Code of the Russian Federation. Combination is the performance by an employee of a greater amount of work, for example, the performance of more duties of an absent employee. At the same time, the employee is not released from the main job and works in combination not in his free time, but during the main working hours. In other words, the worker has a heavy burden. At the same time, an employee can perform additional work both in one and in another profession. When combining, it is not required to conclude a new employment contract, in contrast to part-time employment.

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 of the Labor Code of the Russian Federation. An employee may be temporarily transferred to another job with the same employer for up to one year. A situation may arise that the transfer is required during the absence of another employee and its duration does not fit into one year, then the period will be set with the wording "until the main employee goes to work."

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

That is, unlike a combination and part-time job, during a temporary transfer there is no additional burden in excess of 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: in agreement with the employer, according to production needs and forced transfer.

Temporary transfer by agreement of the parties

Temporary transfer by agreement of the parties is probably the easiest transfer. It seems to be nothing complicated, but at the same time, the employer needs to pay attention to the correct design of such a translation.

Consider a situation where the main employee either fell ill, or went on a business trip for a couple of months, or went on a long vacation, or on a regular regular vacation, and it became necessary to replace such an employee. Here, it is just possible to temporarily transfer an employee to the position of an absentee, since, for example, there are urgent unfinished issues, without signing any documents, production will stop or the employee quit altogether, but for now they will find a replacement for him, it is necessary to perform certain work.

Unlike part-time employment, a temporary transfer of an employee is not displayed in the work book, everything happens exclusively by agreement of the parties. Although, on the other hand, it is necessary to display a 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 dated April 16, 2003 No. 225).

Before transferring a temporary employee to another job, it is necessary to inform him about it. How long is not established by law, so there is no need to wait for certain days, weeks. Such a message (notification) can be both in writing and orally, the main thing is to get the consent of the employee that he is not against it.

After obtaining consent between the employer and the employee, an additional agreement is concluded to the employment contract, in which it is necessary to indicate the basis for the transfer, for how long the transfer is carried out, the level of wages, if it is subject to change, 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.е. by agreement.

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

After drawing up an additional agreement, the manager draws up an order for the temporary transfer of an employee in the form No. T-5 or T-5a (these forms are approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1). In such an order, the employer should indicate the reasons for the temporary transfer, the work performed, the term and wages.

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

Also, employers should take note of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004, 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 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 the destruction or damage to property, or to replace 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 Decree).

An employer's action will also be a mistake if, for example, an employee was temporarily transferred to another job and then fired, because the employer took another employee to his previous place. Do not forget that during a temporary transfer, the employee retains his workplace and he can safely return after the agreed period. This situation was considered by the Constitutional Court of the Russian Federation, and such a conclusion is contained in the Ruling of the Constitutional Court of the Russian Federation of 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, while, by written agreement of the parties, an employee can replace a temporarily absent employee, who, in accordance with the law, retains a job 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 was 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 becomes invalid and the transfer is considered permanent. Such regulation also cannot be considered as violating the constitutional rights of citizens.”

Temporary transfer if necessary

The concept of temporary transfer in case of operational necessity is also contained in Art. 72.2 of the 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 that endanger 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 an employment contract with the same employer in order to prevent these cases or eliminate their consequences;
the transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage to property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage to property or to replace a temporarily absent employee is caused by extraordinary circumstances.

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

With such a transfer, in the event of a production need, the employer should take into account that in the event of disputes with employees, he will be obliged to prove the existence of circumstances that led to a temporary transfer for the named circumstances. This is expressly stated in paragraph 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

Consider, for example, the following situation: there was some kind of catastrophe (accident) at work, the employer issued an order for the temporary transfer of workers to eliminate the consequences of the catastrophe (accident) and did not indicate the reason for the transfer in it, and the employee did not agree to transfer, even temporarily, to work to eliminate the catastrophe (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 Ruling of the Kemerovo Regional Court dated February 29, 2012 No. 33-1817: “... When considering the case, the court concluded that the employer had grounds for transferring the employee, that is, circumstances that endanger life and normal living conditions the population or part of it. The court referred to such circumstances the deformation of the support, which can lead to the collapse of the rock and the death of people, as well as the blocking of the conveyor belt, which can lead to smoke, fire and fire.

However, when considering the case, the defendant (employer) did not provide evidence of the existence of emergency 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 employees 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 executed, since the order applies to tunnellers, and he worked as a mining machine operator, and therefore an order should 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 to transfer.

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

In paragraph 40 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”, 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 proceed with it, the employer is obliged to provide evidence testifying to the legality of the translation itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is recognized as illegal, dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement in his previous job.

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

Having established these circumstances, the court of first instance concluded that there was a case under 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 employees without their consent to work not stipulated by an employment contract in order to prevent this case.

Based on the analysis of this case, employers should think about the fact that for a correct temporary transfer in the event of an operational need, they should either obtain the consent of the employee for a temporary transfer, or independently issue an order on the temporary transfer of the employee / employees with the obligatory indication of the reason for such a transfer. With the correct execution of a temporary transfer order indicating the reason, timing or a specific event, the employer will be able to avoid misunderstandings on the part of employees, as well as protect themselves from litigation.

It should also be taken into account that the employee has the right to refuse the transfer if it is dangerous for his life and health. An unreasonable refusal of an employee to temporarily transfer in these situations will be regarded as a disciplinary offense, and absence from work as absenteeism. This is clearly stated in paragraph 19 of the Decree 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 par. 5 hours 1 art. 219, part 7 of Art. 220 of the Labor Code of the Russian Federation, an employee cannot be disciplined for refusing to perform work when a danger to his life and health arises due to violation of labor protection requirements, with the exception of cases established by federal laws, until such danger is eliminated, or from performing work with harmful and ( or) hazardous working conditions not provided for by the employment contract. Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee from refusing to perform such work even when they are due to 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 a temporary transfer is carried out by agreement of the parties, but this is at best. Then it just needs to be properly drawn up so that claims against each other do not arise in the future.

When a temporary transfer of an employee in case of production necessity, it is imperative to indicate in the order itself why such a temporary transfer is necessary. It should not be forgotten 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 connected with the skills, knowledge, skills of the employee and the transfer will really threaten his life and health, only in this case the employee can refuse the transfer. I repeat, an unreasonable refusal of an employee from a temporary transfer in case of production need, with a real need in the organization, is not allowed.

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

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

HR policy, Corporate culture

Under this term, it is customary to understand the change of labor functions of an employee with a permanent or temporary sign, as well as his transfer to another structural unit.

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

implementation of reconstruction of enterprises;
implementation of modernized works on it;
change of technological processes;
failures in the procurement process;
relocation of the company to other territorial spaces;

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

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

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

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

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

All actions with changes in the working staff of the company must be carried out on orders, with the appropriate entries in their work books.

The difference between translation and movement

With the above concept, we have decided. Now let's look at the accompanying term "displacement". This is also a transfer, but in his case, there will be no contradictions to the current employment contract, both the qualifications of the employee and his specialty, position are preserved. You don't need to get his consent. So, it will be:

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

We conclude that transfer and movement differ according to cumulative characteristics:

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

Important! It is not uncommon for the movement to correspond to its main features, but it can have an impact on the health of the hard worker. Then it is illegal, except in situations where this is prescribed in advance in the employment contract.

Main types of transfers

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

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

with other labor functions or job responsibilities in the same enterprise,
change of workplace simultaneously with a change in the 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 about the upcoming changes against signature two months before this event, if he refuses, to carry out a legal dismissal procedure.

A temporary transfer is possible provided that:

this action is approved by both parties and executed in writing for a period not exceeding one year,
on the basis of it, another temporarily absent employee is replaced, with the transferee retaining his permanent place of work.

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

Varieties of temporary transfers

in the event of an unforeseen situation, such as an accident at work or due to the causes of natural and man-made disasters,
according to the state of health of the subordinate,
pregnant employee on medical grounds,
a woman with a child under 18 months of age,
requirement of the military office.

With the written consent of the employee

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

When, during the implementation of such an action, the schedule of his work, place, previously performed functions, income, regime, and the like will be changed.

In such cases, an appropriate application, an 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 needed for production needs, but not more than 1 month, and while maintaining the territorial location of his place of work.

The following actions are legally allowed:

prevention or elimination of consequences of natural disasters,
prevention or elimination of the consequences of industrial accidents,
prevention of accidents, downtime, damage to public and state property,
replacement of another employee who is not present at the workplace,
at other exceptional times.

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

Important! All exceptional situations that are not predictable 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 negligent managers use it at their discretion.

Important! If such actions in relation to an employee do not have the hallmarks of a production need, they can be considered illegal.

Temporary transfers mandatory for the employer

These include:

action justified by a medical indication of harm to the health of the worker,
the action of a pregnant woman, or breastfeeding, or with a child under the age of 18 months,
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 by its parties.

The last type of transfer comes from the requirements of a third party. It is carried out in order to increase the level of military training of an employee without taking him away from production. At the same time, 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 previous salary will remain with the employee for the entire period.

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

The same situation is with women who have children under 18 months. Above all, such women should be given all the preferences and benefits that existed at the previous place of work.

Upon the expiration of the term for such a transfer, 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 issuing a temporary transfer to another job

It requires the following documentation in the same order:

the employee's application for translation, the format of a memorandum is possible,
corresponding order,
an additional agreement that changes the main labor document,
actual move offer,
making appropriate entries in the employee's work book.

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

Does the employee have the right to refuse the transfer

By the letter of the law, an employee may waive this if:

new labor functions can create damage to his health or life,
new labor duties are harder and more harmful than those spelled out in his main labor document.

This is prescribed 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 unreasonable and such that they entail the imposition of disciplinary sanctions and absenteeism if they have not been 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, the 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 on any basis, incl. both for a vacant position (place of work) with this employer, and for replacing 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, for whom, in accordance with the law, the place of work is retained. In this case, the transfer period may be more than one year. It depends on the time of entry to work of the replaced worker.

Within the terms 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.

At the end 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 term of the temporary transfer has expired, and the employee does not insist on the provision of the previous job and continues to work, then the condition on the temporary nature of the transfer becomes invalid. In this case, work in the position (profession, specialty) to which the employee was temporarily transferred is considered permanent for him and the employer is not entitled to transfer him to his previous or other job without the consent of the employee.

3. 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 work stipulated by an employment contract. Unlike a temporary transfer to another job, which is allowed both to a vacant position (place of work) and to replace a temporarily absent employee who retains the position (place of work), the employee may perform the duties of a temporarily absent employee without releasing his main duties. only to replace an employee who retains the position (place of work) (for example, for the duration of 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 work stipulated by an 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. The agreement of the parties on a temporary transfer to another job cannot be terminated early unilaterally by the employee or employer, as is the case when the employee, along with his work, performs the duties of a temporarily absent employee (see comments to Article 60.2).

4. Part 2 of the commented article provides for the grounds on which the employer has the right to transfer the employee temporarily 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 endanger 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 these 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 the destruction or damage to property or to replacement of an absent employee (part 3 of article 72.2 of the Labor Code of the Russian Federation). In other words, the temporary transfer of an employee without his consent to work not stipulated by an employment contract can be recognized as justified only if this is necessary due to emergency circumstances that endanger 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 such reasons as equipment breakdown, untimely delivery of raw materials or materials, etc., and this is not related to the emergency circumstances provided for in part 2 of the commented article, then such a transfer is only allowed by agreement of the parties. As explained by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004, when applying parts 2 and 3 of the commented article, which allow 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 rests with the employer (paragraph 17).

5. The duration of one (each) transfer to another job without the consent of the employee in cases where such a transfer is necessary due to emergency circumstances that endanger the life or normal living conditions of the population, should not exceed one month. However, such a transfer may be repeated. 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 a calendar year.

The job to which the employee is transferred in connection with the above circumstances (including to replace a temporarily absent employee) must correspond to his qualifications. If in this situation it is necessary to transfer to another job that requires lower qualifications, then such a transfer is allowed 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. At the same time, when transferring an employee to another job without his consent, i.e. in the cases provided for in parts 2 and 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, it is unacceptable to transfer to another job that is contraindicated for the employee for health reasons.

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 endanger 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 the established requirements and the employee does not have good reasons to refuse the transfer.

Refusal to perform work during a translation made in compliance with the law is recognized as a violation of labor discipline, and absence from work - absenteeism.

In doing so, it should be taken into account that, by virtue of par. 5 st. 219, part 7 of 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, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract. Since the Labor Code does not contain provisions 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 Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).