How to transfer to another job without the employee’s consent

When is it permissible to transfer an employee without his consent to another position?

The concept and rules of translation are enshrined in Articles 72 – 73 of the Labor Code of the Russian Federation. In particular, Art. 72.1 and 72.2. determine whether the employer can transfer an employee to another job without his consent to do so. According to general rules, the employee’s opinion is necessarily taken into account. But there are cases when transfer to another job without the employee’s consent is permitted by law (Article 72.2 of the Labor Code of the Russian Federation). If there is any doubt that the situation falls into the category listed in the article, it is recommended to conclude an agreement between the parties, because if the audit does not reveal extraordinary circumstances, the organization’s actions will be considered unlawful. At the same time, deliberate failure to perform work when changing a job function, carried out in compliance with the law, is recognized as a violation of labor discipline (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004, as amended on November 24, 2015). An employee has the right to refuse only if labor safety standards are not met and the new job poses a danger to his life and health. At the same time, they are obliged to offer him another (Article 220 of the Labor Code of the Russian Federation).

Temporarily

In Art. 72.2 of the Labor Code of the Russian Federation lists the cases in which it is possible to temporarily transfer an employee to another job without his consent:

• upon the occurrence of dangerous circumstances that threaten the lives of the population (in case of industrial accidents, man-made disasters, natural disasters, etc.);
• if a dangerous situation caused downtime or a threat of property damage;
• if during a dangerous situation it is necessary to replace an absent employee.

At the initiative of the employer, the employee is transferred in connection with the prevention or elimination of the consequences of the above circumstances for a period of no more than one month in the same organization. The annual number of such movements is not limited.

When downtime or replacing an absent employee, it is important to consider qualifications. The Code regulates whether an employee can be transferred to another place of work without the consent of an employee to a position of lower qualifications. Consent will not be required only if he is temporarily transferred to a position of the same or higher qualifications. In other cases, a written agreement is required. For example, it is impossible to forcibly transfer a site manager to workers, but vice versa is allowed.

Options for the employer

The employer plans to eliminate the position of account manager in the sales department and introduce the position of customer acquisition specialist in the marketing department.
Therefore, he is interested in how to correctly formalize the reassignment of an employee to a similar position that has appeared in another structural unit with a different name, but while maintaining the same job responsibilities. In this case, two options are possible:

• or layoff of an employee and simultaneous employment to a position in another department;

• or transfer from one unit to another without dismissal.

According to the State Labor Inspectorate in Moscow, you should start with staff reduction, and then arrange a transfer.

Constantly

Art. 72.1 of the Labor Code of the Russian Federation allows the transfer of an employee at the initiative of the employer permanently due to production needs, if the terms of the employment contract do not change: to another workplace, to another structural unit in the same locality (but only if it is not specified in the contract). If the job function does not change, and the employee still does not agree, then if there are no other vacancies, the previous employment contract is terminated. Under other circumstances, a permanent transfer of an employee in any form, including to another locality (another locality) together with the employer, requires a mandatory agreement with the employee.

What does translation mean?

The transfer of an employee is always accompanied by changes in the staffing table and the terms of the previously signed employment contract. Moreover, as regards the contract, adjustments can occur not only in the title of the position, but also in the standard working hours, work hours, wages, etc. All updated information is entered into the employee’s personal card, but his personnel number remains the same (unless this concerns a transfer to another company - there the employee receives his own individual personnel number).

To another employer

To transfer an employee to another employer, it is necessary to carry out the procedure for terminating the employment contract under clause 5 of Art. 77 Labor Code of the Russian Federation. This is permitted only with written agreement of the parties.

If a new job is contraindicated for medical reasons, appointment to this position is prohibited (Article 72.1 of the Labor Code of the Russian Federation).

ConsultantPlus experts discussed how to arrange the transfer of a temporary employee to a permanent place of work upon dismissal of the main employee. Use these instructions for free.

Internal transfers: done correctly

In some cases, labor legislation allows the dismissal of employees only when it is impossible to transfer them to another job available to the employer, which the citizen can perform taking into account his state of health. We are talking here about both vacant positions or work corresponding to the qualifications of the employee, as well as vacant lower positions or lower paid work. In this case, the consent of the employee must be obtained. Please note that the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. An employer is obliged to offer vacancies in other localities only if this is provided for by a collective agreement, agreements, or employment contract (Articles 81, 83 and 84 of the Labor Code of the Russian Federation). We are talking about dismissal of employees in the following cases:

• reduction of the number or staff of employees of an organization, individual entrepreneur (clause 2 of Article 81 of the Labor Code of the Russian Federation);
• inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results (clause 3 of Article 81 of the Labor Code of the Russian Federation);
• reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2 of article 83 of the Labor Code of the Russian Federation);
• disqualification or other administrative punishment that excludes the possibility of the employee fulfilling his duties under the employment contract (Clause 8 of Article 83 of the Labor Code of the Russian Federation);
• expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, the right to carry a weapon, other special right) in accordance with the law, if this entails the impossibility of the employee fulfilling his duties under the employment contract ( clause 9 of article 83 of the Labor Code of the Russian Federation);
• termination of access to state secrets if the work performed requires such access (clause 10 of Article 83 of the Labor Code of the Russian Federation);
• violation of the rules established by law for concluding an employment contract, if this violation was not the fault of the employee and excludes the possibility of continuing work (clause 11 of article 77 of the Labor Code of the Russian Federation).

We also remind you that an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another available job that is not contraindicated for this citizen due to health reasons. Meanwhile, if the specified person needs a temporary transfer for a period of up to four months, refuses the transfer, or the corresponding job is not available, then the employer must suspend the employee from work for this period while maintaining the place of work (position). However, during the period of suspension, the employee’s wages are not accrued. At the same time, if an employee needs a temporary transfer for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the appropriate work, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation (Article 73 Labor Code of the Russian Federation).

As a rule, in all of the above cases, the employer sends the employee a corresponding notice or proposal to transfer the employee to his existing vacant positions (see Example 6).

What documents should I submit?

General step-by-step instructions for transferring an employee to another position without his consent boil down to the following steps.

Step 1: Notification (optional in emergency situations).

Step 2. Drawing up and signing an additional agreement to the employment contract (indicating dates).

Step 3. Issuance of a transfer order (in the T-5 form or another accepted by the organization).

Step 4. Making an entry in the work book (if a temporary entry is not made).

Step 5. Making an entry in your personal T-2 card.

The order and changes in the employee’s personal card must be familiarized with signature.

Registration of temporary transfer

So, if an employer wants to replace a temporarily absent employee and transfer another to his place, he sends the latter a proposal for a temporary transfer. The offer can also be made orally, since there are no special requirements for it. And if the employee agrees, an agreement to the employment contract is drawn up in writing in two copies.

If the transfer deadline is known in advance, it must be indicated in the agreement. However, if an employee is transferred to replace a temporarily absent employee, it is better to define the period as “until N returns to work.” When concluding a transfer agreement, fix in it the basis for the transfer, its duration, the employee’s new responsibilities, as well as other conditions that differ from those established by the employment contract.

Here is a sample of such an agreement.

Based on the agreement, a transfer order is drawn up in the unified form T-5 (approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for labor accounting and payment”). In the line “Type of transfer” it is necessary to indicate that the transfer is temporary, and the employee must be familiarized with the order against signature.

Then you should make an entry about the transfer in section. III personal card “Hiring and transfers to another job” (f. T-2).

But an entry about a temporary transfer is not made in the work book (part 4 of article 66 of the Labor Code of the Russian Federation and clause 4 of the Rules for maintaining and storing work books [1]).

If an employee is transferred to another job or position, he must be familiarized with the job description and other local regulations relevant to the performance of work for this position, and, possibly, undergo safety training and conclude a liability agreement.

Keep in mind that if, at the end of the transfer period, the employee’s previous job is not provided, and 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 (Article 72.2 of the Labor Code of the Russian Federation).

How to formalize this if the deadline for the transfer was unknown is not explained in the Labor Code. We think that first the employees can be notified that the main employee is returning to his place, and the temporary one is given his position, and then an order can be issued. You can immediately issue an order to terminate the performance of duties in a temporary position and return to the performance of duties in the main position, which the employee should also be familiarized with and signed. This order is drawn up in any form (see sample).