Why are they refusing to hire? What are the reasons for refusal of employment and how to issue a written refusal

According to Article 64 of the Labor Code of the Russian Federation refusal to hire must be clearly worded. Every citizen has the right to choose a career based on his desires and skills, and when hired, count on the same opportunities, regardless of faith, status or previously held position.

Refusal to hire under the Labor Code

Employers often refuse people without giving significant reasons. In this position, candidates are at the least advantageous position at the very beginning. By Article 64 of the Labor Code of the Russian Federation it is prohibited to refuse registration without clearly substantiated arguments, and under Part 6 of the mentioned article, unmotivated rejection of a candidate disputed in court. In fact, it is almost impossible to oblige the employer to sign a contract, and legal practice on this issue rarely develops in favor of citizens.

The employer has the authority, at his own discretion, to make the necessary decisions regarding the selection, hiring and dismissal of employees. In some cases, the employer refuses applicants, but for illegal refusal there is liability in accordance with Part 1 Art. 64 Labor Code of the Russian Federation.

To correctly formulate a justified refusal to an applicant, the following recommendations are useful:

• you need to make sure that the applicant is not one of the persons who, by law, cannot be refused employment;
• determine whether there are real grounds for rejecting the applicant’s candidacy;
• the message must refer to the law if the applicant is not included in the category of persons who are prohibited from being refused;
• provide a reasoned refusal to hire in writing if the citizen requests it;
• the refusal should be handed over to the applicant or sent by letter with an inventory and notification attached.

A written justification for the impossibility of hiring is not required only if there is no vacant position at the enterprise.

Legitimate reasons for refusal

In order for the employer’s negative response to be justified and motivated, it is necessary to refer to the fact that the employee does not have the required qualities that are paramount for the implementation of this type labor activity. These qualities mean the ability to perform labor functions and compliance professional requirements.

Professional qualities include appropriate education and experience in the profession, the required specialization or qualification level. Personal – the level of communication, the ability to clearly follow the orders of the manager, health parameters, achievements in the profession.

An employer’s refusal to hire may be considered legal in the following situations:

1. A minor citizen who has not received permission from parents or legal representatives for employment.
2. The documents required for registration were not presented.
3. The work involves difficult working conditions, and the candidate is female. Women are prohibited from carrying heavy loads, and women who have small children are not allowed to engage in activities with an irregular work schedule. Minor applicants may be rejected for the same reason: they should not lift heavy objects, endure excessive mental stress, or perform work with dangerous conditions labor.
4. Applicant for public service does not speak Russian.
5. There is a disqualification recorded in work book.
6. The applicant has a limitation established by the court to perform certain job duties.
7. The citizen has mental illness.
8. Foreigners who apply for activities related to state secrets.

You can refuse for other reasons if they have clear arguments.

Unlawful reasons for refusing to hire

Obtaining a job cannot be related to the applicant’s place of residence. Rejection of an applicant for the following reasons is considered discrimination:

• religion;
• nationality;
• race;
• age restrictions.

Reasons that degrade human dignity include:

• pregnancy;
• having a child;
• chronic diseases;
• disability;
• lack of registration at the place of residence;
• lack of membership in a trade union body;
• non-acceptance of the results of elections, competitions, court decisions.

IMPORTANT! It is impossible to refuse a person with a disability if he has provided a referral under a quota mandatory for the organization.

For those who have Russian citizenship, registration is optional. Applicants are not required to be union members. Elected positions and winning competitions are outside the scope of the employer’s competence. A court decision on the employment of a citizen is not subject to discussion and cannot be.

Who cannot be denied employment?

There are preferential categories of citizens who cannot be denied employment, regardless of the subjective attitude and preferences of management or personnel department employees. By Article 64 of the Labor Code It is prohibited to refuse to hire:

• pregnant workers;
• mothers or fathers raising a child alone if they are the sole breadwinner;
• candidates by invitation who have already left their previous position.

ATTENTION! If the owner has changed, the chief accountant and director may be refused to renew the contract. But this can be done no later than 3 months from the moment the new founder appears.

Written refusal to hire an employee with wording

A common reason cited is a lack of skills stated in the open position description. The refusal must contain information about what skills, abilities, and business qualities do not meet the stated requirements.

If, based on the selection results, a decision was made to refuse the applicant and he requested a document with confirmation, then the manager who made such a decision is obliged to:

1. Provide a refusal to hire against a signature, having previously marked it on the document registration number.
2. Clearly formulate the reasons for the negative decision.
3. A signed copy of the recipient and a written statement requesting the document should be retained.

The letter to the applicant must be written in a correct and respectful manner. You can use the following language: “Your resume will be reviewed when new vacancies become available. We wish you good luck in your future job search!”

Employer's liability for unjustified refusal of employment

For an insufficiently motivated refusal, the employer may be subject to administrative and criminal liability. Measures are applied to employees of the enterprise in the form of a reprimand, reprimand, as well as:

• Administrative liability occurs in case of violation of legal norms. In this situation, the penalty will be a fine. Failure to comply with the law may result in the company's operations being suspended for up to three years.
• If a pregnant woman or an applicant with children is denied employment, the employer who made such a decision may incur criminal liability. The culprit is subject to a fine of up to two hundred thousand rubles or correctional labor.

If employment is unfairly denied, a citizen has the right to

Let's consider the main arguments for refusal of employment, which were recognized by the courts as legal.

The law does not require hiring

There are cases when employment is guaranteed by law and the employer cannot refuse the applicant employment and conclusion employment contract. Such situations include:

• an invitation by way of transfer from another employer (Part 4 of Article 64 of the Labor Code of the Russian Federation);
• assignment to work against the established quota of jobs (Article 13 of the Law of April 19, 1991 No. 1032-1 “On Employment in the Russian Federation”);
• election to a position (Articles 16, 17 of the Labor Code of the Russian Federation);
• election by competition to fill the corresponding position (Articles 16, 18, 332 of the Labor Code of the Russian Federation).

Here, the employer's discretion regarding the choice of candidate is limited. No arguments can justify the refusal. If the employer refuses to conclude an employment contract for the applicant, the applicant has the right to demand compensation for lost earnings.

Article 234 of the Labor Code obliges the employer to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. The list given in it is not closed. Violation by the employer of the legal ban on refusal of employment, we believe, can be considered as an illegal deprivation of the employee’s opportunity to work.

If the applicant does not belong to one of the categories that are provided with an additional guarantee in the form of a ban on refusal of employment, then in the event of an illegal refusal to hire, he can only count on compensation moral damage. The court does not have the right to force the employer to conclude an employment contract with everyone. Considering, however, that companies have to refuse employment quite often, recognizing such refusals as illegal will entail serious financial consequences for the employer.

If it is proven that the actions or inaction of the employer do not comply with the law and violate the rights of the employee, the infliction of moral harm to the latter by such actions (inaction) is presumed (clause 63 of Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2; hereinafter referred to as Resolution No. 2). The court can only determine the amount of compensation for moral damage (Part 2 of Article 237 of the Labor Code of the Russian Federation). Even failure to inform the employee, at his request, of the reasons for the refusal in writing allows him to file a lawsuit to recover compensation for moral damage from the employer, including when the refusal is considered justified. Therefore, the employer must approach the issue of justifying and formalizing the refusal to conclude an employment contract with all responsibility.

There were no public vacancy announcements

As you know, the employer makes personnel decisions independently and under his own responsibility. Paragraph 10 of Resolution No. 2 explains that in order to optimally reconcile the interests of the employer and the person wishing to enter into an employment contract, and taking into account the lack of Labor Code rules that would oblige the employer to fill out vacant positions immediately as they arise, the courts must check whether the employer has made an offer for the vacancies available to him. An offer of vacancies can be made both orally and in writing: submitted to the employment service, published in a newspaper, announced on the radio, announced during speeches before graduates educational institutions, posted on the notice board.

Emergence labor relations by concluding an employment contract is based on the voluntary expression of the will of both parties - both the employee and the employer. This means that in the absence of an offer from the employer about the vacancies available to him, even if they exist, there is no reason to believe that the refusal to hire was made unreasonably (appeal ruling of the Supreme Court of the Udmurt Republic dated May 29, 2012 in case No. 33-1656/ 2012).

Before making a personnel decision, the employer can conduct interviews, questionnaires, enter into correspondence or conduct oral negotiations, and otherwise explore the labor market, however, such actions in themselves do not indicate a decision to fill a staff position (cassation ruling of the Supreme Court of the Republic of Mordovia dated May 24, 2011 in case No. 33-968/13).

Thus, only the offer of vacant positions in the organization makes it possible for the applicant to insist on concluding an employment contract based on the results of the application. In the absence of a notification, when an applicant comes on his own initiative, the company has no obligation to immediately employ him, even if he will be interviewed and his business qualities will suit the employer. The company may, for example, include it in personnel reserve and keep this in mind when making future decisions about filling a particular staff position.

If the company has no open vacancies at all, then the employer refuses to hire a citizen who contacts the organization regarding employment precisely because of this circumstance. There is no need to look for any other reasons or motives for refusal of employment. A sufficient reason is the absence in the state of the corresponding unit for which the applicant is applying, or the already planned exclusion of a position from the staffing table, for example, due to a reduction in the number or staff of employees. After all, if the employer does not have a vacant position, there is simply nowhere to employ the applicant.

The applicant must prove the unreasonableness of the refusal to hire

When approaching an employer with a claim to invalidate a refusal to hire in accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation, the employee must prove that the fact of contacting the employer regarding employment actually took place. This can be confirmed by a written application to the employer about hiring, a statement explaining the reasons for refusal to hire, or other acceptable and reliable evidence. Applications sent to the employer must be marked as having been received. If the application is sent by mail, it is necessary to provide a list of the attachment with a postmark on dispatch, and a notification of delivery. Circumstances such as, for example, the fact that the applicant is on the employer’s premises, that he visited the HR department, that he has a temporary pass issued by the employer, etc., do not in themselves indicate the existence of the applicant’s will to conclude an employment contract, on reaching appropriate agreements with the employer, receiving a refusal to hire (cassation ruling of the St. Petersburg City Court dated 07/07/2011 in case No. 33-10366).

Judicial practice. Citizens contacted the organization with job applications. They applied for jobs in professions that the employer needed at the start of the heating season. However, by the time they applied, there were already applicants for all vacant positions who were ready to start work at the beginning of the heating season. There was no need to find new workers. This circumstance was confirmed by the testimony of future employees of the organization, interrogated as witnesses. The citizens who were refused employment did not provide sufficient evidence that they approached the organization with proposals to conclude an employment contract earlier than others. Therefore, the court did not satisfy their demands to declare the refusal to conclude an employment contract illegal (cassation ruling of the Yaroslavl Regional Court dated January 23, 2012 in case No. 33-293).

The absence of a vacant position is confirmed by the staffing table, a certificate prepared by the employer stating that all staffing units filled out with explanations from the employer’s representatives, as well as witness statements.

Please note that a position vacated by a resigning employee, about which the employer notified the employment service, but which subsequently remained occupied by the same person, is not considered as a vacancy. This situation may arise if an employee who submitted a resignation letter to the employer then withdrew his application (decision of the Nizhny Novgorod Regional Court dated August 24, 2010 in case No. 33-7333/2010).

Refusal to hire based on personal qualities

In a situation where a vacancy exists and the employer has made an offer for the vacancy, the basis for refusal to conclude an employment contract may be inconsistency business qualities applicant's requirements for the proposed vacancy. According to clause 10 of Resolution No. 2, the business qualities of an employee should, in particular, be understood as abilities individual perform a certain labor function, taking into account the following available to him:

• 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, work experience in a given specialty, in a given industry).

In addition, the employer has the right to present to the person applying for a vacant position other requirements that are mandatory for concluding an employment contract by virtue of a direct instruction federal law, or which are necessary in addition to standard or typical professional qualification requirements due to the specifics of a particular job (for example, possession of one or more foreign languages, ability to work on a computer).

A refusal to hire an applicant due to his lack of special knowledge in the relevant field of activity will be justified and justified (decision of the Kaluga Regional Court dated 04/09/2012 in case No. 33-754/2012).

During employment, work experience in the position for which the applicant is applying is also assessed. If the required work experience is not available, the refusal will also be considered lawful (ruling of the Samara Regional Court dated May 16, 2011 in case No. 33-4896). In some cases, the courts recognized as justified a refusal to hire, motivated by the applicant’s reluctance to undergo systematic training to improve their qualifications (appeal ruling of the Lipetsk Regional Court dated May 21, 2012 in case No. 33-1141/2012).

When interviewing a candidate, the HR department employee, in addition to professional qualifications, also evaluates the personal qualities of the applicant, since he will have to work in an established team. The discrepancy between the personal qualities of the applicant may consist in his lack of gentleness and flexibility in communication, which creates possible difficulties in finding a compromise with clients, the difficulty of working in a team and subordination to management. Lipetsky drew attention to this regional court in the above-mentioned appeal ruling dated May 21, 2012 in case No. 33-1141/2012. When interviewing an applicant and assessing his personal qualities, the employer may take into account any other circumstances worthy of attention, in particular, a very short period of work in various institutions and enterprises and frequent changes of place of work (decision of the Moscow City Court dated 08/04/2011 in case No. 33- 24594).

We also note that when checking the validity of a refusal to hire, the court does not decide whether the applicant could perform the work for the available vacancy. The court only checks the reasons for the refusal. If the refusal is motivated specifically by business qualities, then it is recognized as legal.

The reason for refusal may be health status

Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 classifies the employee’s health status as his business qualities. As a general rule, applicants for employment are not required to undergo a medical examination. However, in the interests of protecting health and determining the suitability of workers for health reasons to perform work with special conditions Labor regulations require a mandatory medical examination for certain categories of workers. These categories include young people under 18 years of age, workers employed in hazardous industries, work related to traffic, work in the field of catering and trade, in medical and preventive care and children's institutions, and some other work (Article 213 of the Labor Code of the Russian Federation).

However, in the event of a refusal to hire for health reasons, the employer will have to prove that such requirements were determined by regulations and were presented specifically for the position for which the applicant applied.

Refusing employment because of an applicant's gender or age is illegal.

Job advertisements often indicate the gender and age of prospective applicants. Currently, the publication of such an announcement is not considered a violation of the law. The fact is that the very fact of posting an advertisement indicating the gender or age characteristics of the required employee does not indicate discrimination in the world of labor during recruitment. After all, discrimination is considered to be the infringement of the rights of a specific person (Article 3 of the Labor Code of the Russian Federation). Refusal to hire on the basis of gender or age may be discriminatory. If a citizen, despite the wishes in the vacancy announcement, nevertheless turned to the employer and he refused to conclude an employment contract on the basis of gender or age, then such a refusal is illegal. If there was no appeal regarding employment or the refusal was ultimately due not to the gender or age of the applicant, but to his business qualities, then the court will most likely side with the employer (appeal ruling of the Moscow City Court dated January 22, 2013 No. 11-1463/ 2013). Please note that in the future, the dissemination of information about vacant jobs (positions) containing restrictions on gender, age, place of residence and other similar circumstances may become an administratively punishable act. The Russian Ministry of Labor has prepared a corresponding bill. True, the document has not yet even been submitted to the State Duma.

Interview with an unauthorized person

In many companies, the recruitment process consists of several stages. Several officials conduct interviews with applicants. Refusal to further employment activities can occur at any stage. At the same time, termination of contacts with an applicant regarding the conclusion of an employment contract is considered as a refusal to hire only if the initiator of the refusal was a person authorized to conclude employment contracts. In order to avoid possible controversial situations, the employer should issue a local regulatory act that defines a list of officials authorized to hire citizens and carry out activities for the employment of applicants.

The absence of a visa of the relevant persons on the applicant's application for employment may be regarded by the court as a lack of evidence of contacting the employer regarding employment in the manner prescribed by law (decision of the Perm Regional Court dated April 16, 2012 in case No. 33-3102). The employer does not have an obligation to draw up an employment contract with the applicant if the application for employment was written by the applicant in the name of a person not authorized to hire a person, just as the visa affixed to such an application was not executed. authorized person(determination of the Supreme Court of the Republic of Khakassia dated June 23, 2011 in case No. 33-13962011).

When an authorized official conducts negotiations with an applicant, both in person and by telephone, the employer must act with caution, avoiding expressions that allow his behavior to be assessed as a clear acceptance of the applicant for the relevant vacancy if any employment procedures have not yet been completed. The applicant can resort to audio or video recording and use these materials in the future as evidence in the case of recognizing the refusal to hire as unfounded. It should not be forgotten that, by virtue of Art. 77 of the Code of Civil Procedure of the Russian Federation, a person presenting audio and (or) video recordings on electronic or other media, or applying for their requisition, is obliged to indicate when, by whom and under what conditions these recordings were made.

If a participant in the process cannot indicate these circumstances, the court has the right not to satisfy the request to include audio and (or) video recordings in the case materials as evidence. Otherwise, such records are accepted by the court as evidence, including in disputes about the refusal to conclude an employment contract (ruling of the St. Petersburg City Court dated January 29, 2013 No. 964).

Is an unreasonable refusal to hire always illegal? How to properly motivate a reluctance to hire an applicant and whether it is possible to challenge a negative decision of an employer is not difficult to figure out if you know labor law!

The history of labor legislation has described many precedents related to challenging unjustified refusals to hire applicants for a vacant position, but similar situations continue to occur, and most of them do not reach the courts. Why is this so?

When looking for a job, many job seekers are psychologically ready to make a negative decision and do not want to delve into why the employer is refusing them. In addition, most citizens are simply not aware of their rights, unlike personnel officers who know the necessary articles of the law and know how to convince potential applicants of the correctness of their arguments. But they also make mistakes, looking for reasons.

Based on legislative framework, the concept of “unreasonable refusal” can be defined as follows: this is a refusal to hire that does not have the grounds listed and regulated by the Labor Code of the Russian Federation - Art. 62, 63, 64.

These articles specify the types of groundless refusal:

• on a discriminatory basis (race, gender, marital status, age, pregnancy, etc.);
• unlawful (when the applicant is presented with requirements not provided for by law);
• unmotivated (when the employer does not bother to explain to unsuccessful employees the reason for the refusal). At the request of the person who was refused, he must provide a written document indicating this reason.

Contains a code and a number of articles defining possible negative grounds for hiring a new employee. More about them...

Legitimate reasons for refusal to hire

Among the official reasons for refusal are the following:

• failure of the candidate to reach the age required to sign an employment contract (Article 63 of the Labor Code of the Russian Federation);
• lack of documents required for registration (Article 65 of the Labor Code of the Russian Federation); Moreover, the absence of a work book is not such a reason - if the hired employee has lost it (or has not yet created it) and he notified the employer - the enterprise - about it;
• discrepancy between the physical state of health and psychological characteristics of the applicant for the proposed position (Articles 253, 265 of the Labor Code of the Russian Federation);
• presence of an entry in the candidate’s work book about the ban on holding this position and maintaining certain activities(Articles 44, 47 of the Criminal Code of the Russian Federation).

Also, separate regulatory documents establish restrictions on the possibility of accepting a vacancy in the field of:

• pedagogical activity;
• public service;
• medical practice.

The law makes it possible to understand how to correctly refuse an applicant a job - a personnel officer can use any of the following wording:

• absence required level education;
• there is no practical experience in the area of ​​activity of the enterprise;
• the applicant’s health condition contradicts the requirements imposed on the employee for this position (a conclusion from a medical commission is required);
• the candidate’s personal qualities indicate that it is impossible for him to fulfill professional responsibilities(this wording can be used after);
• the knowledge and skills that the applicant possesses do not correspond to the direction of the organization;
• lack of vacancies in the organization at the time of application;
• the interview was conducted by an unauthorized person;
• the candidate does not meet the requirements prescribed by special regulatory documents.

Unlawful grounds for refusal of a vacancy

The list of unfounded refusals submitted in the labor code is of a notification nature and may include many reasons that the court considers unlawful. An applicant who has been refused can win a case in court if the reason is one of:

• pregnancy or the presence of a child under 6 years of age or a disabled minor child;
• (if management was notified in writing);
• disability (presence of a medical certificate);
• HIV infection;
• non-observance of rights - discrimination of racial, national, property, ethnic, social, religious, age, gender nature.

Any of the above motives will be grounds for filing a claim, the main thing is that the rejected applicant for the position receives written refusal in hiring - the employer must provide it upon request no later than three working days.

How to challenge an employer's refusal to hire you in court

The right to work and choice of activity is regulated by the Constitution of the Russian Federation. Every citizen who has received an unlawful refusal to hire can challenge it in court on the basis of Part 6 of Art. 64 Labor Code of the Russian Federation.

The period for appeal after receiving an unlawful decision from the employer is three months. In this case, the plaintiff has the right to compensation for material and moral damage, and, if desired, to obtain the coveted position if the case is won.

Difficulties that a claimant may encounter include the following:

• it is necessary to prove the fact of contacting the employer’s organization;
• it is necessary to prove the fact of refusal - that is, to obtain written confirmation of it with the discriminatory reasons listed above.

If the written refusal contains only a note about the candidate’s lack of business qualities necessary to perform job responsibilities or there is an indication that the applicant does not meet the requirements specified in the regulatory documents - the case will obviously be lost, and the fact of an unlawful refusal will be practically unprovable! Even with witnesses, winning will be difficult and troublesome!

Perhaps, for a failed employee, the consolation will be the realization that he was lucky not to be subordinate to a manager who does not value the company’s reputation and the respect of his employees! After all, for a careless attitude towards personnel issues such a leader may sooner or later be punished.

It doesn’t matter whether you are a job seeker or an employer, knowing what a motivated refusal to hire looks like will come in handy! Be legally literate and let your profession give you only positive emotions!

A company may incur administrative, and its officials – even criminal liability for failure to provide an applicant for an open vacancy with a written explanation of the reasons for refusal to hire. A well-drafted refusal to hire will help avoid such liability.

There is a fairly high probability that a situation will arise when a rejected applicant for an open vacancy sends a request to explain the reasons for the refusal to hire. Previously, such a letter could be ignored, but on July 11, 2015, an amendment came into force, which obliges employers, no later than seven working days, to provide written explanations indicating the reasons for refusal to hire (as amended).

For failure to provide an applicant with a written refusal to hire, administrative liability is provided ():

• warning or imposition of an administrative fine on officials in the amount of 1,000 to 5,000 rubles; for legal entities – from 30,000 to 50,000 rubles;
• in case of repeated violation - imposition of an administrative fine on officials in the amount of 10,000 to 20,000 rubles or disqualification for a period of one to three years; for legal entities – from 50,000 to 70,000 rubles.

In addition, in addition to an administrative fine, officials are subject to criminal penalties for unreasonably refusing to hire a pregnant woman or a woman with children under three years of age (). This violation entails:

• imposition of a fine in the amount of up to 200,000 rubles or in the amount wages or other income for a period of up to 18 months;
• or compulsory work for up to 360 hours.

Let's consider how an employer company can draw up a reasoned refusal to hire unsuitable applicants, what to look for when choosing a candidate, and in which cases the refusal will be lawful and in which it will be unreasonable.

Registration of refusal to hire

Failure cases can be divided into two categories:

• hiring is directly prohibited or limited by the legislation of the Russian Federation (see the section “What to remember when refusing a job” below);
• the applicant, due to his business qualities, does not meet the requirements established for an applicant for a specific position.

A company may face various situations in which it is necessary to refuse an applicant a job. For example, the documents submitted do not meet the requirements of the position; The work that a new employee will need to perform daily is contraindicated for him due to medical or age factors. It is also possible that at the time the applicant submitted a resume, the company had already made a decision in favor of another applicant who had responded earlier, and thus the reason for the refusal to hire was the lack of open vacancies.

In addition, the company may refuse to hire a candidate due to inconsistency of business qualities, the requirements for which are set out in the job description or other local regulations. regulations.

According to the legislation of the Russian Federation, the business qualities of an employee include his ability to perform a certain job function, taking into account his existing professional qualifications (for example, the presence of a certain profession, specialty, qualifications), personal qualities (for example, health status, a certain level of education, experience work in a given specialty, in a given industry) ().

At the same time, the company has the right to present to the applicant other requirements that are not established by the legislation of the Russian Federation, but are mandatory for concluding an employment contract by virtue of a direct prescription of federal law, or that are necessary in addition to standard or typical professional qualification requirements due to the specifics of a particular job ( for example, knowledge of one or more foreign languages, ability to work on a computer) ().

Consequently, the company may indicate in the vacancy additional requirements for the position for which the applicant is applying.

However, in the event of labor disputes, it will be necessary to justify the need to establish a list of additional requirements. The list should reflect the characteristics of the functions of a particular position and the nature of the work. For example, additional requirement The requirement for an applicant applying for the position of land surveyor to have skills in working in specialized programs (for example, MapInfo or AutoCAD) may be due to the need to perform work that involves computer processing and correction of land survey information. In addition, the company has the right to require the applicant to have the necessary experience in the relevant field of activity or in a certain specialty (profession), specialized knowledge to complete daily labor functions.

Thus, in order to prepare the most reasonable notice of refusal to hire, we recommend that you draw up detailed and up-to-date job descriptions that reflect work in specific organization. They must list qualification requirements for the position and real additional knowledge and skills.

Often, heads of personnel departments and production departments tend to important document are very formal. It is no secret that job descriptions are drawn up on the basis of templates, sometimes the only change in which is the name of the organization and the name of its leader. Detailed study functional responsibilities indicating a number of special skills, a certain level of education and work experience in the specialty in the future will allow the company to legally and reasonably refuse to hire an unsuitable candidate, and a new employee to quickly get up to speed in a new place.

If the job descriptions do not stipulate the above requirements, then to justify the refusal of employment it is necessary to refer to the standards reflected in legislative acts RF.

What to remember when being rejected for a job

Concluding an employment contract with a specific person, job seekers, is a right and not an obligation of the company. does not contain rules that oblige vacant positions to be filled immediately as they arise. The Supreme Court of the Russian Federation indicates that the employer has the right to independently, under his own responsibility, make personnel decisions in order to effectively economic activity and rational property management ((hereinafter referred to as Resolution No. 2)).

Thus, the company can freely select candidates for the position that best suit the job characteristics by drawing up a detailed job description.

At the same time, HR specialists and heads of organizations first of all need to pay attention to whether the candidate falls into the category of persons whom the legislation of the Russian Federation prohibits from hiring.

Thus, legislation prohibits or restricts admission to an open vacancy:

• persons under 16 years of age (except for performing easy work, which does not cause harm to their health, in their free time from receiving basic general education and without prejudice to the development of educational program) ( , ; , );
• persons under 18 years of age to be involved in part-time work (), to work on a rotational basis (); to work in harmful and (or) dangerous working conditions, in underground work, as well as work, the performance of which may harm their health and moral development (gambling business, work in night cabarets and clubs, production, transportation and trade in alcoholic beverages, tobacco products, narcotic and other toxic drugs, erotic materials); to work associated with carrying and moving heavy loads that exceed the maximum standards established for them ();
• persons under 18 years of age to work with narcotic drugs and psychotropic substances, as well as activities related to the circulation of precursors (approved);
• persons under 18 years of age for work related to the direct maintenance or use of monetary, commodity valuables or other property, requiring the conclusion of a written agreement on full financial liability ();
• women to perform work related to lifting and manually moving weights exceeding the maximum permissible norms (; decree of the Government of the Russian Federation dated 02/06/1993 No. 105);
• women for work with harmful and (or) dangerous working conditions, as well as for underground work (with the exception of non-physical work or work on sanitary and consumer services) ( ; );
• part-time workers if they apply for a job as the head of an organization in the absence of permission from the authorized body or the owner of the organization at the main place of work ();
• part-time workers if they are applying for a job related (like their main activity) to driving vehicles or traffic control vehicles ();
• persons without documents necessary for employment in accordance with the requirements of labor legislation ();
• persons applying for a job with harmful, difficult or dangerous working conditions for a part-time position, but who have not provided the documents necessary for employment in accordance with the requirements of labor legislation (), as well as a certificate about the nature and conditions of work on the main place of work ( , );
• foreign citizens who have not provided a work permit (with the exception of certain categories of persons ((hereinafter referred to as Law No. 115-FZ)));
• persons who have not passed the mandatory medical examination for work: in organizations of the food industry, public catering, trade, in medical and preventive care and children's institutions; in organizations with harmful and (or) dangerous working conditions; related to traffic ( , ); in the regions of the Far North and equivalent areas ();
• persons under 18 years of age and who have not passed a mandatory medical examination (,);
• disqualified persons for work as the head of an organization, medical or pharmaceutical personnel ();
• foreign citizens temporarily staying in Russia to work as a chief accountant or another position for which the employee is entrusted with maintaining accounting ().

If the above categories are not among applicants, then the next condition is the presence of a package of mandatory and additional documents established by law.

If all documents are in order and available, then the applicant’s business qualities and his ability to efficiently and effectively solve the tasks assigned to him throughout the entire period of work are considered.

Of course, the company itself decides which of the candidates being considered is most suitable, taking into account formal and informal requirements, internal rules and her corporate culture. However, in this case, it is imperative to be guided by the provisions of the legislation of the Russian Federation and be prepared to explain the legality and validity of the refusal to conclude an employment contract.

In addition, there are reasons for which it is prohibited to refuse employment.

So, the employer will violate current legislation, if it refuses an applicant for an open vacancy for one of the following reasons:

• discriminatory nature of motives not related to business qualities (gender; age; property, family, social and official position; place of residence (including the presence or absence of registration at the place of residence or stay); race; skin color; nationality; language; origin; attitude towards religion; beliefs; belonging or not belonging to public associations or any social groups) ();
• women for reasons related to pregnancy or the presence of children ();
• persons invited to work in writing by way of transfer from another employer, within one month from the date of dismissal from their previous place of work (Part 4 of Article 64 of the Labor Code of the Russian Federation

  Please note that the requirements that are so often found in job advertisements regarding the age of the employee, as well as the presence of permanent or temporary registration in the city where the vacancy is open, are reasons of a discriminatory nature (Article 64 of the Labor Code of the Russian Federation;).

  Elena Ermilova , specialist in personnel records management Acsour company

Labor legislation of the Russian Federation directly prohibits(Article 64 of the Labor Code, part one).

In order for such a refusal on the part of the employer to be lawful and reasoned, it is necessary to refer to the lack of business qualities in the employee necessary to perform certain functions. These qualities mean the ability to perform direct job responsibilities, as well as the presence of relevant professional and (or) personal characteristics.

The professionalism of the applicant includes the presence of appropriate education and work experience, the presence of the necessary specialization or qualifications.

TO personal qualities include the ability to communicate and carry out orders from the immediate supervisor, state of health, and the presence of certain successes in work activity in the profession indicated in the resume.

IN labor legislation lists all the cases when an employer cannot refuse to hire.

Such beneficiaries include only certain categories of workers. For example, pregnant employees who have medical confirmation of their status. They happen in any case, regardless of the personal attitude and preferences of the manager or recruiter (the person who selects personnel).

Any citizen of the Russian Federation has the right to get a job. Restriction of this right will be considered a violation of labor and federal laws.

The employer must have a compelling, legal and motivated refusal, which is recorded in in writing and is handed over to the applicant. If there are no grounds for such a refusal, the employee has every right to appeal the employer’s actions in court.

Discrimination on any grounds is unacceptable!

The reason for refusal cannot be the applicant’s religion, nationality, social status, or even age (including being hired for a job).

Refusal according to Article 64 of the Labor Code is prohibited (subject to professional skills!):

• pregnant workers;
• mothers or fathers raising children alone and being the sole breadwinners;
• invited specialists who have already left their previous workplace.

Towards discrimination judiciary The following failure cases may include:

• if the employee has HIV infection;
• if the employee has citizenship, but the employee does not have a residence permit at his location legal entity(enterprise or organization where you are applying for a job);
• if there is an assigned disability group;
• based on gender, nationality, political or religious preferences (all these characteristics have nothing to do with professional skills!);
• if there is a referral (invitation) to a specific workplace;
• when elected to a position or filled in through competitive selection.

For violations in this area, employers bear disciplinary, administrative, and sometimes even criminal liability!

Persons in leadership positions are sentenced. In some cases with them. A repeated violation entails disqualification for up to three years.

Monetary penalties are imposed in accordance with the Code of Administrative Offenses (article number 5.27):

• managers who committed violations pay 5,000 rubles;
• organizations or enterprises are fined up to 50,000 rubles.

Criminal liability occurs when given to a pregnant employee or a woman raising three or more children on her own. Appointed public works for a period of up to 180 hours. Sometimes they are replaced at a cost of 200,000 rubles.

It is obvious that the selection of candidates for vacant place it is necessary to approach with maximum attention and responsibility, taking into account all the circumstances associated with each of the employees.

Legitimate reasons for refusal

The refusal will be considered legal in the following cases:

• If the applicant is in and does not have permission from parents (adoptive parents or guardians) for this employment (Article 63 of the Labor Code).
• If everything necessary to sign the contract has not been provided. Their list is given in Article 65 of the Labor Code. It should be noted that the absence, and in some cases, military documents (), is not considered a violation of legal norms.
• If there are difficult working conditions at a particular workplace, and the applicant is female (Article 253 of the Labor Code). For example, a woman cannot carry heavy objects. And a mother of many children with small children should work according to...
• On the same basis, a minor applicant can be refused. Teenagers should not lift heavy objects, experience mental stress, or work in workplaces that are hazardous to health (Article 266 of the Labor Code).
• If the applicant for the civil service does not know the Russian language (Federal Law No. 58).
• If the employee has a disqualification with a corresponding entry in the work book (according to the Administrative Code, article number 3.11).
• If the applicant has a judicial restriction on the execution of certain job functions(Article 47 and 44 of the Criminal Code).
• If the employee has certain psychological problems. For example, a tendency to alcoholism, drug addiction, epilepsy (Resolution No. 377).
• If the position requires access to state secrets, and the applicant is a foreigner (Resolution No. 775).

Also, the refusal may be motivated by other reasons that are not separately identified in labor and federal legislation. For example, the employee may not have the required specialization or qualifications. He has no experience (no seniority or experience in a specific position).

Barriers to employment also include:

1. poor health and the presence of certain diseases discovered during a medical examination;
2. absence from current moment vacancies;
3. failure to pass an interview and/or test.

Methods of refusal and wording

If the reason is expressly stated in labor legislation, the employer can refer to it by indicating the relevant article.

It is a little more difficult to refuse for reasons not specified in the Labor Code or regulations of the Ministry of Labor.

In this case, the absence of certain personal (business) qualities may serve as grounds for refusal. In addition, the employer has the right to require certain specific skills or abilities from the applicant. For example, knowledge of several foreign languages.

This reason is fully motivated and does not require additional explanation (indication of conditions based on legislation). Instead of referring to legislation, the employer provides full justification for its actions. For example, you can refer to failure or .

If the candidate himself sent it, the employer may refer to the lack of vacancies. The proof in this case is staffing table. And if a person applied to temporarily replace an existing employee, you can refer to the employee’s entry into the workplace. In this case, the law does not oblige you to respond to every resume sent by applicants through a call for an interview.

Refusal after studying the submitted resume in most cases is due to the candidate’s lack of certain qualities or the presence of legal obstacles in his or her job. In this case, the employer refers to the relevant article of the Labor Code, local acts or other documentary grounds.

Is it always necessary to notify a candidate of a refusal?

The law does not oblige recruiters or the employer to respond in writing to every resume if the employee submitted it on his own initiative.

Resume and documents submitted during the discussion of admission to a vacant position (documents were requested, testing or interview was conducted), they require from the employer written refusal. It can also be requested by the candidate himself (Article 64 of the Labor Code, part five) and also in writing.

The refusal is written on the letterhead of the organization or enterprise; it must indicate:

• details of the organization or enterprise;
• reasons for refusal with their justification or reference to legislative norms.

How not to miss a good specialist?

In order not to make a mistake in choosing a candidate, the recruiter or employee authorized by the employer must, first of all, pay attention to the professional skills of the applicant. Then attention is paid to his personal characteristics (ability to communicate, follow orders from the manager, etc.).

It is important to conduct an interview and, if necessary, p. It should be noted that for most professions, the marital status or number of children of the applicant does not matter.