Refusal to hire. Sample notification letter

“Personnel decide everything,” but for this they need to be selected wisely. In order to hire a suitable employee, it is necessary to carry out additional selection and, as a result, screening. The principle of freedom of employment contract gives the employer the right, and not the obligation, to conclude it with one or another applicant, forming personnel at its own discretion. Rejection of candidates is an integral part of this process.

How to say “no” without conflicting with the law and avoiding charges of discrimination?
What does an employer face for an unjustified refusal proven in court?
What language should you avoid when writing a refusal notice?

These and other questions that arise when points of view on a vacancy do not coincide are discussed in this article.

Examples of job refusals:

- due to a criminal record - due to staff reduction - for business qualities - for health reasons - due to lack of registration - due to lack of experience - for a minor

The law protects, prohibits and obliges

Personnel formation is almost the only area of labor law where the employer feels more or less free and protected in relation to employees, or rather, to those who just want to become them. The Labor Code of the Russian Federation does not say anything that the employer is obliged to immediately fill any vacancies that appear or formalize labor relations with certain specific persons.

However, the Constitution and the Labor Code of Russia proclaim the principle of freedom of labor, which guarantees citizens the opportunity to unlimitedly choose the type of activity and use their ability to work (Articles 3-7 of the Constitution of the Russian Federation, Article 2 of the Labor Code). On March 17, 2004, the Supreme Court of the Russian Federation adopted a resolution on equal opportunities when registering labor relations. This right is duplicated in Art. 64 of the Labor Code, which directly prohibits discrimination in employment on any grounds other than professional ones and those specified in federal legislation.

REFERENCE! Provisions on discrimination in the world of work were regulated back in 1958 in Art. ILO Convention No. 111 and enshrined in Art. 19 of the Basic Law of the Russian Federation and Art. 3 Labor Code of the Russian Federation. When determining the professional and labor qualities of a candidate, employers are guided by the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004.

The latest legislative innovation is the norm of the labor law (Article 64 of the Labor Code of the Russian Federation), obliging the employer to explain the reason for the refusal to the applicant for a vacant position and, at the request of the latter, provide the refusal in writing within a week.

What consequences can there be for an employer if an unreasonable refusal to hire a person is made ?

Legal grounds for refusing a job applicant

The reasons that any authority considers legitimate for refusal can only be related to the professional qualities of the candidate or to personal ones that may affect the quality of future activities. These are the reasons that should be indicated in a written notice of refusal, which will be considered justified.

IMPORTANT! It doesn’t matter what prompted the personnel officer to reject the candidate: lack of the required diploma, tattoo or too avant-garde hairstyle of the applicant, or a criminal record. The wording should not contain discriminatory statements, so only a justified reason should be voiced.

The following are recognized as legal grounds for refusing a candidate:

Inconsistency of the applicant’s qualifications with the vacant position (confirmed by the absence of supporting documents, revealed at an interview or during the probationary period).
Lack of knowledge, experience or skills necessary for future activities (confirmed by documents, recommendations, interviews, tests, tests, etc.)
Unsuitable health status for this vacancy (confirmed by medical documents).
Lack of suitable vacancies at the time of application (confirmed by the staffing table).
Psychological inconsistency (confirmed by testing, interview, probation period).
Age reasons determined by the Labor Code: some positions cannot be held by minors and persons who have crossed a certain threshold (Article 63 of the Labor Code).
A court ban on holding certain positions.
The candidate's reluctance to undergo a probationary period.

FOR YOUR INFORMATION! If a candidate was interviewed by a person not authorized to hire a person, then the positive outcome may be considered unlawful, and the refusal, on the contrary, may be justified.

Who should not be refused

If none of the above reasons are voiced, the refusal may be considered discriminatory and even challenged in court.

INFORMATION! If the court turns out to be on the side of the unfairly unemployed, the manager may face a fine of 30-50 thousand rubles, suspension of the enterprise’s activities for up to 3 months, and in cases of pregnant women and mothers, criminal liability.

Reasons for refusals that are illegal, which employers sometimes resort to, are listed below.

Any characteristics not related to professionalism: skin color, nationality, political leanings, adherence to religion, etc.
Lack of registration at the place of residence or place of work.
Membership or lack thereof in a trade union organization.
HIV-infected status.

Unconditional candidates

It is unlawful to refuse to hire certain categories of candidates:

pregnant women and mothers;
disabled people allocated to a position based on a quota;
passed the competition;
for those who are employed by transfer (within a month from the date of leaving their previous position).

In what cases is refusal to hire a person prohibited by law ?

Correct refusal

IMPORTANT! Recommendations on the procedure for refusing to hire from ConsultantPlus are available here

It is always unpleasant for someone hoping to get a job to say, “You’re not right for us,” but it is often a necessary responsibility. Here are several ways to inform a candidate that his expectations were not met.

Silence is a sign of refusal . A common way is to promise to call the applicant back after the interview if the decision is positive. The absence of such a call will automatically let the person know that he has not been accepted. If an unsuccessful applicant asks to state the reason for refusal, the employer should comply, but in practice this does not happen often.
Legal notice by mail or electronically . When making such mailings, the employer needs to be very careful in formulating the reason for the refusal. Most often, the candidate is thanked for his attention to the organization, informed that someone else has filled the vacancy, and finally wishes for further success.
Verbal "no" . The most unpleasant way for HR managers. A negative decision can be communicated in person or by telephone. Sometimes it is softened by a phrase about the possibility of employment in the future if circumstances change.

NOTE! It is not necessary to tell the applicant the true reason for the refusal. If it is not legally valid, and if you are required to formulate it in writing, you must try to justify the refusal with a legally permitted reason.

Adviсe

Be prepared to be asked about the reason for the refusal.
Find arguments in case of persuasion if you firmly decide to refuse.
Do not complain to the employer that the proposed conditions are not worthy of attention. There is no need to try to arouse pity or refuse the vacancy too energetically. Try to correctly express your position on refusing the job offer. Take your time to say what you think. Avoid saying: “Work for such pennies yourself.” It is likely that even if the employer's representative does not try to refute the arguments, the meeting will leave an unpleasant aftertaste. The world of professionals is narrow. You may have to apply to this organization in search of work in the future.
Be restrained, friendly, correct.
Pull yourself together, don't panic. No need for long-winded phrases. It’s better to come up with a short, succinct formulation explaining the reason: you’re not happy with the work schedule, they’ve offered you a vacancy with higher pay.
Don't worry about the answer being "no." You are not the only candidate for the vacancy. You have the right to choose the location that suits you.
Try to be honest and open if the situation allows it. Thanks to your honesty, the employer will be able to draw the right conclusions and, if necessary, make adjustments to their actions.

How to write a written refusal to hire an employee

A document, the demand for which is recognized as imperative for the employer (Article 64 of the Labor Code of the Russian Federation), must be drawn up very carefully, since it can serve as evidence in legal disputes. When issuing a refusal of employment, make sure that it contains the following points:

name and details of the organization (it can be issued on company letterhead);
outgoing number (the document is registered);
a clear formulation of the reasons for refusal of employment with legislative justification;
visa of the manager or head of the human resources department, certified by the appropriate seal.

Refusal to hire due to criminal record

If an unsuccessful applicant asks the employer to state in writing the reason for the refusal, the latter is obliged to do so (Article 64 of the Labor Code of the Russian Federation). Notification must be provided in writing within 7 days of receipt of such request. An employer who fails to comply with this requirement on time may be held liable.

Such a document must be drawn up very carefully, as it may become the subject of legal proceedings.

A candidate's criminal record is not an absolute sign that can serve as a legitimate justification for refusal of employment. Only certain positions require its obligatory absence in the candidate’s biography: those related to financial responsibility, information technology, and, in certain positions, teaching activities, as well as service in internal affairs bodies. In all other situations, it will be legally unlawful to indicate a criminal record in the notification as a reason for refusal to hire.

ATTENTION! To notify, you need an official form of the organization or an indication of all its details. The refusal is recorded as outgoing documentation. As in any legally significant document, the manager’s handwritten signature, date and stamp, if applicable, are required.

LLC "Lingvogeniy" Ref. No. 12/156 dated September 18, 2017, P.I. Raskidaylov, Ekaterinburg, st. Academician Postovsky, 12, apt. 28

NOTICE Dear Peter Ivanovich!

Thank you for attending the interview at Lingvogeniy LLC on September 11, 2017. We regret to inform you that we are forced to deny you employment for the position of German language teacher in the middle age group at our training center.

According to the certificate provided, you have a criminal record under Art. 116 of the Criminal Code of the Russian Federation, which relates to the categories of crimes against life and health. Despite the fact that you were not convicted, the investigation was terminated on non-exonerating grounds. Labor Code of the Russian Federation in Art. 331 “The right to engage in teaching activities” prohibits persons with such a criminal record from being allowed to work with minor students.

General Director of Lingvogeniy LLC /Prokhorov/ V.V. Prokhorov

How to tactfully refuse an employer after an interview

Tactfully does not mean making up excuses, but you should not answer rudely either.

It is important for you to smooth out negative aspects at this stage. In the future, it may turn out that you will have to come back for an interview with this company. Such grievances are not forgotten, especially if they concern someone’s personality. With thoughtless actions, you are digging a hole for yourself.

A detailed diagram with examples of how to refuse an employer after an interview, or before going to work for the first time, includes the following steps.

Greetings and your introduction

Be sure to remind them who you are and how you are connected to this company. This is not just a way to get rid of the employer’s forgetfulness, but also basic politeness.

Example 1:

“Good afternoon, N! I am Ivan Ivanov. Yesterday/a week ago I had an interview at your company for position K.”

Example 2:

“Hello, N! You are worried about Ivan Ivanov, who was interviewed for the position of K in your company. Remember me?".

Example 3:

"Good afternoon! I recently interviewed for a K position at your company. My name is Ivan Ivanov. It was on such and such a date at such and such a time.”

Let them know that you are pleased with the interest shown in your person

This is a very important point. It allows you to gently prepare the employer for a subsequent refusal.

Example 1:

“Given how busy you are, I’m glad you took the time to tell me.”

Example 2:

“I am very grateful that I was able to visit your company’s office and see how work processes are organized from the inside.”

Example 3:

“I want to thank you for taking the time to chat with me.”

Compliment the company

You need to be careful here. Don’t go too far: don’t be effusive in gratitude, because it will take a lot of time. Be concise and easy to understand. Your speech must be delivered correctly.

Examples:

“Your company is an example of a close-knit team, thanks to whose efforts even the most complex financial problems are easily resolved”;
“When communicating with you, I got acquainted with the valuable opinion of a person who is in this business for a reason. You gave me a lot of useful ideas, and in such a short period of time you still managed to convey life experience”;
“It was interesting communicating with you/the interviewer/employees. I felt a friendly atmosphere. The people who work for this company are clearly in the right place and I'm very happy to get to know them.”
“I was really impressed by the way work is organized in your company. I found a lot of positive reviews online when I was preparing for the interview and was able to verify that they were true.”
“In the process of communication, I gained useful experience. I admit, I was able to identify my weaknesses. It was a pleasure talking to you/the interviewer.”

Tell me that it was difficult for you to decide to take such a responsible step - refusing a position

Try not to make your speech sound false. If you overdo it, you will look like a deceiver whose words you don’t want to listen to.

Example 1:

“I was forced to think for a long time before I decided to inform you of the refusal. This is a very serious step for me."

Example 2:

“In fact, I would be very glad to become an employee of your company, but I have to refuse, that’s why I’m calling.”

Example 3:

“Unfortunately, I will not be able to join the staff of your company. After the interview, I spent several days thinking about it, but still came to this conclusion.”

Be sure to indicate what caused the refusal

As in the previous paragraphs, the meaning of this is politeness and tact. The employer needs to know that you are not just running away from your position.

Examples:

“The office is far from my home. I’m not willing to spend two hours getting there and then spend the same amount of time getting home”;
“Financial conditions are not interesting enough for me”;
“I received an offer from another company, which is currently a higher priority for me”;
“For me to accept this vacancy, the N factor is not enough. I need time to get my bearings, and for now I am not ready to take this position”;
“I understand that my experience is not enough to adequately represent your company in this position.”
“To be honest, I’m not sure that I can fully unleash my creative potential in my current position. It’s not so much the amount of financial compensation, but the fact that I imagined my functional responsibilities a little differently.”
“I am not 100% confident that I will be able to fully satisfy the requests that you place on your future employee. I realized this only after the interview, which, I repeat, made a pleasant impression on me.”

Wish the company success

The best way to end a refusal is to wish success and rapid professional growth to the company’s employees.

Example 1:

“I wish to find a suitable employee for this position/position N as soon as possible. I am sure that your company will continue to develop/grow.”

Example 2:

“I am confident that you will find a worthy employee who will take this position and cope with the responsibilities better than I could.”

Example 3:

“I wish your company growth and profit, and personally thank you for giving me the opportunity to interview.”

If you decide to refuse the position immediately after you passed the interview (that is, you did not even have time to leave the office), then you need to slightly adjust the refusal plan.

The refusal plan right at the interview will sound like this:

A brief compliment to the company (no more than one sentence, highlight the main points).
Gratitude for your attention.
Rejection reason. (“I’m sorry to say this, but I have to resign from this position because...”).
We wish to find a suitable employee for this vacancy as soon as possible.

Refusal to hire due to staff reduction

Reducing the number or staff of an enterprise is a rather sensitive procedure from a legal point of view. Some employees are fired, but there cannot be any talk of hiring other personnel for these positions, otherwise the reduction will be illegal.

However, it may well be that due to the “redrawing” of the staffing table, other positions appear, or during the reduction, certain vacancies open up, and candidates want to fill them.

IMPORTANT! Former company employees who are laid off due to staff reduction have priority in employment. First of all, new vacancies should be offered to them. Only if a written refusal has been received from them, recruitment for these positions can be announced among outsiders.

If a redundant employee refuses existing vacancies and is fired, and then wants to take one of the newly created vacancies, he will also have priority over other applicants. Although it is important to remember that the employer is not obliged to inform a previously dismissed employee about the vacancy.

In any case, staff reduction cannot in any way be considered an independent legitimate reason for refusing to conclude an employment contract.

Right time

Ideally, you should resign from a position as early as possible.

If you have made a decision, inform your employer about it.

An appropriate refusal period is considered to be 7-10 days from the date of the interview.

Missing the correct time to refuse puts the employer in an awkward position and disrupts his plans. The result is loss of business reputation and being included in the “black list” of candidates.

Refusal to hire based on business qualities

Such a reason for refusal is certainly legitimate. The employer has every right not to hire an employee who does not meet the requirements for the position for which he is applying. If employers mask with this wording the true reason for their reluctance to enter into an employment relationship, which is not legal, the discrepancy with business qualities must be documented.

In accordance with the norms of business documentation, when registering a refusal, you must adhere to the following requirements:

draw up a document on company letterhead or indicate the necessary details of the organization;
register the outgoing document indicating the method of delivery to the addressee (in person against signature or by registered mail with notification);
justify non-compliance with business qualities with the requirements of the job description or labor legislation;
fix the document with the signature of the manager and the seal of the organization.

Below is an example of drawing up a justification for refusal of employment due to inadequacy of business qualities

LLC "Pishchepromavtomatika" Ref. No. 14/118n dated 06/08/2017 Petrikovskaya E.S., Samara, st. 1st Beloretskaya, 3, apt. 11.

Dear Elena Sergeevna!

In response to your request dated June 02, 2021, to justify the reason for refusal of employment in accordance with Part 5 of Art. 64 of the Labor Code of the Russian Federation we inform the following.

The director of Pishchepromavtomatika LLC, by order No. 14 dated June 15, 2015, approved the job description for the head of the marketing department, which requires a higher specialized education and fluency in English.

From the documents you provided at the interview, it is clear that you received a specialized secondary education with a degree in economics, and also completed non-specialized foreign language courses. During the interview, it was revealed that your level of English proficiency is lower than necessary for free communication. In addition, secondary specialized education is not enough to occupy this position.

Due to the non-compliance of your business qualities with the requirements stipulated in the job description, Pishchepromavtomatike LLC is forced to refuse to conclude an employment contract for you to occupy this position.

Part 6 art. 64 of the Labor Code of the Russian Federation allows you to appeal this refusal in court.

General Director of Pishchepromavtomatika LLC /Lisitsky/ S. N. Lisitsky

Refusal to hire for health reasons

Health status is an integral component of the business qualities of a job applicant. This is how it is interpreted by Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004. Not for all professions a medical examination during employment is mandatory, but for a number of positions and categories of employees it is mandatory. This applies to the types of labor listed in Art. 213 of the Labor Code of the Russian Federation (work in transport, in children's and educational institutions, catering, etc.), as well as for minors seeking employment. The employer must be convinced that by allowing the applicant to work, he will not harm either his health or the health of people who come into contact with him in the course of his work.

Art. 253 and 265 of the Labor Code of the Russian Federation substantiates the possible discrepancy between the physical or mental health of a candidate for a vacant position, and Art. 266 regulates the mandatory requirement of medical documents as part of the employment package.

When refusing due to non-compliance with health requirements, the employer must prove that they are presented specifically for the position for which the candidate wanted to apply, and are confirmed by legislative provisions, for example, a medical report.

Below is an example of a letter justifying the reasons for refusal of employment related to health conditions

LLC "Golden Key" Ref. 34/12 dated July 11, 2017 to A.L. Raynovsky, Moscow, Lyalin Lane, 8, apt. 10

On the reasons for refusal to conclude an employment contract Dear Anton Leonidovich!

In response to your written request dated 07/09/2017 to justify the reasons for refusal of employment for the position of pizza master at the Golden Key cafe, we inform you as follows.

Labor Code of the Russian Federation in Art. 213 requires a mandatory medical examination to work in public catering organizations. The requirements for the vacancy, posted in the media and on the Internet, indicated the requirement that the candidate have a certificate of completion of a medical examination in form 086-u. You did not provide this document during the interview.

In accordance with the requirements of Part 1 of Art. 213, the package of documents you submitted when applying for a job is incomplete. On this basis, we refuse to employ you.

According to Art. 64 of the Labor Code of the Russian Federation, you can appeal this refusal in court within 3 months.

General Director of Zolotoy Klyuchik LLC /Limonova/ L. D. Limonova

How to competently refuse a candidate for a position

01.01.70

Domestic legislation does not allow you to simply answer “no” to unselected candidates. The refusal must be properly formalized and justified, otherwise there is a risk of a lawsuit: while lawyers advise how to avoid such an outcome in a long and legal way, HR managers give recommendations that radically “simplify” the task.

The reason why questions arise about a competent refusal to an applicant are the guarantees established by the legislator under Art. 64 of the Labor Code of the Russian Federation. Firstly, the Labor Code of the Russian Federation recognizes as illegal the so-called “unreasonable refusal” when concluding an employment contract. Secondly, even if the refusal to conclude an employment contract had every reason, it can be appealed by the candidate in court - and then all its circumstances will be examined very carefully.

It is traditionally believed that such trials are almost absent in domestic practice. However, this is not the case. The situation of refusal to hire is commented in sufficient detail, including on the material of cases considered by the courts. In order to ensure uniform application of labor legislation by the courts, the Plenums of the Supreme Court of the Russian Federation even issued clarifications (in particular, this problem is raised in paragraphs 10–11 of the Resolution of the Plenum of the Armed Forces 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” ). True, it turns out that most personnel officers have developed somewhat simpler “protective mechanisms” that differ markedly from the official ones. But first, about what the law says.

Signs of failure

First of all, it is worth conditionally distinguishing between legitimate refusals to hire on two grounds - legal and justified, as suggested by lawyer Igor Rodionov, who has extensive experience in resolving labor disputes.

Let's start with formal (legal) refusals, when the hiring of individual applicants is directly prohibited or limited by federal laws or other regulations. The expert emphasizes that in this case, the employer does not need to justify the lack of necessary business qualities of the applicant, but it is necessary to choose the right basis for refusal. It could be:

the person applying for work has not reached the age at which it is permissible to conclude an employment contract (Article 63 of the Labor Code of the Russian Federation). As a general rule, this is 16 years old, but it should be noted that in some cases an employment contract can be concluded with a person of younger age;
failure by a person applying for a job to provide documents that, according to the Labor Code of the Russian Federation, must be provided when concluding an employment contract (Article 65 of the Labor Code of the Russian Federation). At the same time, do not forget that in addition to those indicated in the article, you can only require those documents that the candidate is obliged to present by virtue of other laws and other regulations, for example, Law of the Russian Federation of July 21, 1993 No. 5485-1 “On State Secrets”, Law of the Russian Federation of July 10, 1993 .1992 No. 3266–1 “On Education”, Federal Law of May 27, 2003 No. 58-FZ “On the Public Service System of the Russian Federation”.

Article 253 of the Labor Code of the Russian Federation limits the use of women in heavy work and work with harmful and (or) dangerous working conditions, Article 265 of the Labor Code of the Russian Federation limits the use of labor of persons under the age of 18 in certain types of activities, Article 266 of the Labor Code of the Russian Federation establishes the mandatory medical examination for citizens under 18 years of age

There are justifications for refusing to hire individual citizens due to their age, gender, or health status. However, they are based on norms directly specified in the laws: Article 253 of the Labor Code of the Russian Federation limits the use of women in heavy work and work with harmful and (or) dangerous working conditions, Article 265 of the Labor Code of the Russian Federation - the use of labor of persons under the age of 18 in certain types of activities years, Article 266 of the Labor Code of the Russian Federation establishes a mandatory medical examination for citizens under 18 years of age.

So, when preparing a refusal, it is fundamentally important to indicate the relevant provision of the law or other regulatory act.

Such prohibitions with reference to a specific law make the task easier for the employer, but cannot always be used. Moreover, in practice they even find themselves in the minority. “As for the other group - justified refusals, everything is not so simple,” says Anna Smekhova, a specialist in the human resources department of the Avarit industrial group. – They are related to the so-called business qualities of the candidate. Having chosen this path, the employer justifies the refusal to hire them by their absence. And this still needs to be proven.

By the way…

Decree of the Government of the Russian Federation dated October 11, 2002 No. 755 approved the List of objects and organizations in which foreign citizens do not have the right to be hired.
Decree of the Government of the Russian Federation dated 06.08.1998 No. 892 established the Rules for the admission of persons to work with narcotic drugs and psychotropic substances, which also determine the persons who have the right to work with them.
Decree of the Government of the Russian Federation dated April 28, 1993 No. 377 approved the List of medical psychiatric contraindications for carrying out certain types of professional activities and activities associated with a source of increased danger, which is the basis for a formal refusal.

The definition of the concept of “business qualities” is given in paragraph 10 of the already mentioned Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2: “The business qualities of an employee should be understood as the ability of an individual to perform certain labor functions, taking into account his professional qualifications (for example, the presence of a certain profession, specialty, qualification), personal qualities of the employee (for example, state of health, presence of a certain level of education, experience in the specialty in a given industry).”

If the court finds that the employer refused to hire due to circumstances related to the employee’s business qualities, then such a refusal will be justified. After all, it is natural that he has the right to present certain requirements to a candidate for a vacant position.

“And here the employer’s ability to correctly correlate the candidate’s business qualities with the requirements for this type of work comes to the fore,” emphasizes lawyer Igor Rodionov. – The most common justified reasons for refusing to hire an applicant are two formulations. Firstly, the entry on the profession (position) in the applicant’s work book does not fully correspond to the one provided for in the employer’s staffing table. Do not forget that it is the prerogative of the employer to approve and change the staffing table and he can exercise his right at any time. Secondly, there is no confirmation that the entry in the work book matches the education documents.”

The second point opens up very interesting prospects for the employer. A company representative has the right to doubt the authenticity of an entry in the work book if it is not confirmed by documents on the education required in this case. And in our country, a huge number of citizens do not work in the specialty they once studied. That is, many people can be formally refused, simply citing insufficient qualifications.

In addition, the employer has the right to present the applicant with the following requirements:

work experience in the profession (specialty) of interest;
knowledge of foreign language;
computer literacy, etc.

However, it must be remembered that the verification of the required business qualities of the applicant can be carried out both through an oral interview and analysis of the documents submitted by the candidate, and through testing and questionnaires. At the same time, it is extremely undesirable to include in such a test, if it is written, questions that are not related to a person’s business qualities (for example, about the availability of an apartment, a car, etc.), otherwise the content of the test may give grounds for declaring it invalid.

expert opinion

Ekaterina ROSCHUPKINA, expert of the National Union of Personnel Officers

Almost every day, HR managers (or employees responsible for recruiting in a company) select the “most worthy” one from several candidates and reject the rest of the applicants. As a rule, this is done orally: in a personal meeting, immediately after the end of the interview, or a few days after the next stage - by telephone.

However, situations may arise when an applicant for a vacant position requires the employer to provide a written refusal to conclude an employment contract. According to Art. 64 of the Labor Code of the Russian Federation, the employer is obliged to satisfy this requirement. Such a refusal must be motivated and justified, because in the future the unsuccessful candidate has the right to appeal it in court. Please note that labor legislation does not specify whether a former applicant for a vacancy may request an explanation of the reason for refusal, orally or only in writing.

Article 64 of the Labor Code of the Russian Federation prohibits unreasonable refusal to conclude an employment contract. This is considered a refusal associated with any direct or indirect restriction of rights or the establishment of direct or indirect advantages depending on gender, race, skin color, nationality, language, origin, property, social and official status, place of residence (including including the presence or absence of registration at the place of residence or stay), the presence of pregnancy, the presence of children, as well as other circumstances not related to the employee’s business qualities. In accordance with paragraph 10 of the Resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” business qualities should, in particular, be understood as the ability of an individual to perform a certain labor function, taking into account his existing professional skills. qualifications (for example, the presence of a certain profession, specialty, qualification), personal qualities of the employee (for example, health status, a certain level of education, work experience in a given specialty, in a given industry). Therefore, I do not agree with one of the points of view presented in the article regarding the “legality and validity” of a refusal to hire if the entry on education (specialty) in the work book does not correspond to the title of the position for which the candidate is applying. Maybe this candidate, who graduated from a vocational school in the 80s as a mechanic, then took a lot of advanced training courses, retraining and received additional skills, abilities and knowledge that fully meet the employer’s requirements? And how many careless personnel officers do we have in our country who, due to their inattention or workload, do not have time to enter information about advanced training and obtaining a new specialty for ordinary “hard workers” in their work books? Therefore, do not rush to refuse precisely on this basis, because the applicant may have a lot of supporting documents that he is ready to provide.

Applicants are often rejected due to negative recommendations from previous jobs. However, this is also not the best option. First of all, in order to collect recommendations about an applicant for a vacancy, it is necessary to obtain the written consent of the candidate himself, otherwise the employee’s rights, which guarantee the protection of his personal data, are violated (Clause 4 of Article 86 of the Labor Code of the Russian Federation). And the candidate has the right not to agree to this condition. Therefore, “negative recommendations” as a justification for refusal to hire can be appealed in court, and the scandalous applicant will be legally obligated to work at your enterprise.

When preparing a written response to an applicant’s request, your refusal should be motivated, for example, by the candidate’s insufficient work experience, inappropriate education (unless, of course, there are “credentials” confirming receipt of the knowledge necessary for the position), etc. As a rule, a justified refusal is drawn up on the organization’s official letterhead and signed by an authorized person. And, of course, candidates cannot be refused due to lack of registration, age, gender, race, nationality, etc. The court will not always be on your side, which is confirmed by practice (see court decision dated June 10, 2002 No. 1566), although there are exceptions (see court decision dated September 21, 2005 in case No. 2-732).

Don't get the papers dirty

The legislator instructs the employer to formalize the refusal in writing and give it to the failed employee

The legislator instructs the employer to formalize the refusal in writing and give it to the failed employee. Such an obligation arises only if the candidate himself demands to explain the reason for the refusal (Part 5 of Article 65 of the Labor Code of the Russian Federation). As soon as he receives such a paper, there is a risk of claims and litigation. Therefore, most personnel officers begin to build their “line of defense” at the outset, using any excuse to avoid issuing such a document.

“Rejecting a candidate is one of the most common working procedures for the recruiting department,” states Irina Perechneva, head of the personnel selection department at Trading. – And, naturally, no one wants to write such an official document to each person. We don't write. And if the candidate himself asks to provide him with an official written refusal, then it is immediately clear: he is dissatisfied with something and, perhaps, will go to court. In this case, it is advisable to call the person for a conversation and persuade him not to start a “useless conflict.” Often this is where the incident ends.”

If the paper still has to be issued, then the employer has a relatively simple way out, which, however, can safely be considered a “game on the verge of a foul.” Thus, one jewelry company resorted to a little trick: a personnel selection regulation was adopted that required the head of a department to fill out a special application to the personnel department to select an employee. The manager indicates in the application the necessary professional requirements and other wishes, puts a date and signature. If a candidate requires a written refusal, you can safely refer to such an application and thereby appeal exclusively to the professional qualities that the person lacks. The trick is that, depending on the specific “refuser,” the application can be retroactively redone and include formal professional qualities that he, naturally, will not have.

on practice

Age discrimination

https://www.kp.ru/daily/24085/318243

05/19/2006 Yu. Stupko, seeing an advertisement in the newspaper that Talirs Plus LLC, which is engaged in casting, needed a chief accountant, went there to find a job. Yu. Stupko had a higher economic education, solid practical experience - he worked as an accountant for more than 20 years, including 15 as a chief accountant - and hoped to fill a vacant position. He was interviewed and asked to wait a day for the result. The next day he was given a written refusal to hire, which stated that he “does not fit the age category.” 06/16/2006 Yu. Stupko appealed to the magistrate court of the Leninsky district of Voronezh. The magistrate rejected the claim. The appeal was considered by the Leninsky District Court. Considering the presence of a written refusal to hire with reference to age, the court declared the refusal illegal and ordered Talirs Plus to pay the plaintiff 290 thousand rubles. for material and moral damage. This amount was determined by the plaintiff: since he was illegally not hired, he began to count the loss of earnings from May 2006 to December 2007. The result was 285 thousand rubles. In addition, the plaintiff asked for compensation for moral damage in the amount of 100 thousand rubles, but he was awarded only 5,000 rubles.

Since the debtor, represented by Talirs Plus, did not comply with the court decision voluntarily, the Federal Bailiff Service began work on forced repayment of the debt, however, as it turned out, the company was not located at the place of registration. Now the service is searching.

Refusal to hire due to “shocking” appearance

https://ateist.spb.ru/stkm/stkm.htm

The decision of the magistrate of court district No. 4 of Kineshma, Ivanovo region, Rumyantsev V.V. dated September 21, 2005 in case No. 2–732 on the claim of F. against Stroykamen LLC (hereinafter referred to as the LLC).

F. filed a lawsuit against the LLC to hire him as a laborer. The claims were motivated by the fact that on August 12, 2005, F. applied to the director of O. LLC with an application for employment as a laborer. The plaintiff presented O. with a referral from the employment center (hereinafter referred to as the CZN). The director refused to hire him, explaining that he did not need workers. F. asked O. to write a refusal to hire in writing on a letter of recommendation. O. returned the letter of recommendation to him without giving him a written answer, which is illegal, because, according to Art. 64 of the Labor Code of the Russian Federation, at the request of a person who is denied an employment contract, the employer is obliged to provide the reason for the refusal in writing. F. asks to oblige the LLC to hire him as a laborer.

The representative of the defendant O. did not recognize the claim and motivated his actions with the following arguments. He has a small enterprise, and he decides all questions about hiring directly. There is no staffing table at the enterprise. The director personally hires workers in those specialties that are required at the time of application. On August 12, 2005, F. came to the company’s office to get a job as a general worker on the direction of the Central Laborer. The director was simply shocked by F.'s appearance, since the plaintiff came to employment negotiations in a skirt (male plaintiff). O.’s desire was to remove F. from the office where the women were located as quickly as possible. At the time of F.’s application, the director of the enterprise had a vacancy for an electrician, but he had already selected a candidate for this job. He didn't need laborers. He did not write a written refusal to hire him on F.’s letter of recommendation, which he admits was his mistake. He believes that he took advantage of the employer’s right to conclude or not conclude an employment contract with a specific employee, and asks the claim to be dismissed.

After studying the case materials and hearing the arguments of the parties, the magistrate decided to reject the claim for the following reasons.

The court found that plaintiff F. has been registered with the State Employment Center of the Kineshma Urban District as an unemployed person since April 21, 2005, which is confirmed by a copy of the personal registration card of a citizen seeking work No. 111 015/0505, and explanations from representatives of the State Employment Center of the Kineshma Urban District . and P. On August 11, 2005, F. was given a letter of recommendation to apply for employment as a laborer in an LLC, where F. actually applied on August 12, 2005, which is confirmed by F.’s explanation, a copy of the letter of recommendation and is not disputed representative of the defendant O.

The director of LLC O. refused to hire F. as a laborer due to the lack of vacancies at the enterprise. At the same time, the director of the LLC did not make a written note about the refusal to hire at the request of F., as well as under the terms of the letter of recommendation. This is confirmed by the plaintiff’s explanation, a copy of the letter of recommendation, and this circumstance is also not disputed by the defendant’s representative O.

The representative of the defendant O. gave the court an explanation for his refusal to hire, which is that the employer has the right to hire workers at his own discretion and at the time F. applied to hire him as a general worker, he did not need workers in this specialty.

According to Art. 64 of the Labor Code of the Russian Federation prohibits unreasonable refusal to conclude an employment contract, and also at the request of a person who is refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing.

The director of LLC O. refused to hire F. due to the lack of vacancies at the enterprise. The court regards this refusal as justified, since the plaintiff did not provide the court with evidence of its groundlessness, i.e. the fact that at the time the plaintiff applied for employment there were indeed vacancies at the enterprise. The court does not accept the plaintiff's assertion that he was refused employment because of his unusual appearance, since the plaintiff did not provide convincing evidence of this.

The representative of the defendant O., in his explanations, testified that he was really “shocked” by F.’s appearance, but he refused to hire him due to the lack of vacancies at the enterprise.

Clause 10 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” contains an explanation that when considering labor disputes related to refusal to hire, in order optimal coordination of the interests of the employer and the person wishing to conclude an employment contract, and taking into account the fact that, based on the content of Art. 8, part 1 art. 34, parts 1 and 2 art. 35 of the Constitution of the Russian Federation, paragraph. 2 hours 1 tbsp. 22 of the Labor Code of the Russian Federation, the employer, for the purpose of effective economic activity and rational property management, independently, under his own responsibility, makes the necessary personnel decisions (selection, placement, dismissal of personnel) and the conclusion of an employment contract with a specific person seeking work is the right, and not the obligation of the employer.

Violation by the employer, in this case the director of LLC O., of the requirements of Art. 64 of the Labor Code of the Russian Federation regarding the failure to communicate, at the request of a person who is denied employment, the reasons for the refusal in writing, the court considers it a circumstance that does not significantly affect the essence of the dispute under consideration.

Taking into account the above, and also taking into account that during the trial it was established that the director of the LLC refused to hire the plaintiff on the grounds that there were no vacancies at the enterprise, which was not refuted by the plaintiff, the court comes to the conclusion that in F.'s claims should be denied.

Author : Andrey P opov, Yekaterinburg.

Date of publication: 08/30/2010.

https://www.kadrovik.ru/modules.php?op=modload&name=News&file=article&sid=11489#

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Refusal to hire due to lack of registration

When forming staff, employers have the right to give preference to candidates of their choice. Often the decisive factor is the presence or absence of registration at a particular place of residence. However, this reason cannot be a basis for refusing to conclude an employment relationship. In Art. Part 2 Art. 64 of the Labor Code of the Russian Federation directly states that the presence or absence of registration at the place of residence or place of residence is not related to the business qualities of the candidate. Therefore, it is not considered as a factor that could affect employment.

Legally, such a refusal will be unlawful and discriminatory, which means that an unfairly offended applicant may well go to court to appeal it.

The person who is refused may well require written reasons for this, possibly to appeal in court. The employer has no more than 1 week for this. Delay is also fraught with liability.

Even if the reason why the applicant was rejected is truly related to his registration or lack thereof, the employer should not formulate it in exactly this way. The law does not allow discriminatory grounds for refusing potential employees, therefore an employer who writes this reason in the notice of refusal is thereby violating labor laws.

When it's not too late to refuse

The optimal time has not been established, theoretically you can cancel at any time, but it is preferable to do this as early as possible, because this is required by ethical standards. Do not report a no-show an hour or half an hour, much less 10 minutes before the meeting, as this will be a sign of disrespect for the person who has freed up time in his schedule to talk with you.

Sometimes, in addition to the HR department employee, department heads can interview the candidate, in whose work schedule they also had to look for windows for a meeting. Employers will have a negative opinion of you, and it is possible that your paths may still cross later - the business world is small, and such a precedent will then ruin your professional reputation.

The best option would be to notify in advance, 1-2 days in advance, but if your decision is made on the same day that the meeting is scheduled, then cancel the interview at least 2 hours before the start.

Refusal to hire due to lack of experience

Work experience is part of the business qualities and personal qualities of the future employee (clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004). When announcing a vacancy, the employer indicates the requirements for the position based on labor legislation or internal regulations that do not contradict it (for example, an order approving a job description). Some positions require a certain number of years of service by the candidate in similar or less responsible positions.

The length of service of a potential employee is reflected in his work book, which must be provided as part of the package of documents upon employment. The person doing the hiring can easily verify whether the work experience corresponds to what is required to fill a particular vacancy.

If the candidate has the necessary work experience and indicated this in the resume, and at the interview it turns out that this experience is not confirmed by entries in the work book, the refusal will be completely justified.

LLC "Derevo-Style" Ref. No. 16 dated April 6, 2021 in response to the statement dated March 30, 2021 N.A. Lesnikov, Voronezh, st. Apricotovaya, 67, apt. 14

NOTICE Dear Nikolai Andreevich!

In response to your written request on March 30, 2021 with a request to justify the reasons for refusal to hire, in accordance with Part 5 of Art. 64 of the Labor Code of the Russian Federation we inform you the following.

You were denied an employment contract with Derevo-Stil LLC due to your lack of the required work experience as provided for in the current job description of a carpenter-machine operator at Derevo-Stil LLC. This instruction No. 18 was approved by the director of Derevo-Stil LLC on May 14, 2015. Clause 2.2 of the job description states that to occupy the position of a carpenter-machine operator, you must have secondary specialized education in this profile and at least a year of work experience in a similar position. The data from the work book you provided indicates that you have not held similar positions since you are employed for the first time.

Based on the above, your business and personal qualities do not meet the requirements for the vacancy of a joiner-machine operator at Derevo-Stil LLC. The conclusion of an employment contract is impossible according to Part 2 of Art. 64 Labor Code of the Russian Federation.

General Director of Derevo-Style LLC /Safyanov/ O.L. Safyanov

What reasons can be given when refusing a vacancy?

Try to always tell the truth. The exception is your personal opinion about the personality of the employer and the company's employees, but about undesirable reasons - below.

When refusing a vacancy, you can safely indicate the following reasons:

You have already managed to agree on another job while the interviewer was considering the feasibility of your candidacy. There is no need to add anything else - this is a good reason.
You are not sure whether you can work in this position, given your limited experience, because not all the details were provided in the job description. You already got acquainted with them at the interview, and the conditions do not suit you.
You are not satisfied with the financial offer. There is an opportunity here to increase your likely salary if you are willing to bargain.
The working conditions are not suitable for you.
You are considering another position with more comfortable conditions.
Traveling to your workplace will take longer than you thought before the interview.
You don't think your current position will allow you to use your strengths.
A large amount of new information that will have to be studied in a short time - you did not count on this.
Inconsistency of experience (you objectively understand that you will not cope with the assigned tasks, even if you do everything according to the instructions).
The corporate culture does not suit you (the need to shave every day, wear a business suit, a white shirt, or, conversely, wear a uniform when it’s hot in the summer and you want to limit yourself to shorts and a T-shirt).
Your resume contains skills that took a lot of time to learn (English, business negotiations, people management), but they will not be in demand at your current job.
You are not ready for business trips, overtime, increased noise levels, constant work at the computer, etc., you imagined the conditions differently.

You can lie if the company turns out to be worse than you imagined, or if it offers illegal conditions.