Unreasonable refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under three years of age (Article 145 of the Criminal Code of the Russian Federation): problems of law enforcement

According to Art. 64 of the Labor Code of the Russian Federation, it is prohibited to refuse employment without justification. It is also not allowed to restrict the rights of an applicant based on gender, nationality, place of residence, age and other characteristics that are not related to professional qualities.

An employee’s business qualities are those that influence the performance of work tasks and depend on professional experience and personality traits.

The manager has the right to present to the applicant only those requirements that are necessary to complete the work, but is not obliged to explain the reason for his decision in writing, unless the person who received the refusal asks to put it in writing (Article 64 of the Labor Code of the Russian Federation). According to Part 6 of Article 64, the applicant has the right to justify and appeal the refusal to hire in court. If the employer refuses to respond to the request, he will be held administratively liable in the form of a fine (Clause 3 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

When refusal of employment is permitted

There are cases when the need to establish restrictions when hiring is provided for by law and appealing such decisions is unacceptable.

For example, persons under the age of 18 are not allowed to perform work:

providing for full financial liability for them;
with harmful and (or) dangerous working conditions;
underground;
that can cause harm to their health and moral development;
involving the transfer (movement) of heavy loads in excess of the established maximum norms;
carried out on a rotational basis.

It is also not allowed to sign an employment contract with a candidate who has received a negative conclusion based on the results of a preliminary medical examination, if its necessity is provided for by law. The most common positions for which employment is possible only after passing a medical examination are driver, salesperson, and catering worker.

When a refusal is considered unfounded

A refusal to hire is considered unreasonable when the employer is unable to support its decision with legal grounds or real facts. This applies to the following circumstances of refusal:

Failure to indicate the reasons why the applicant is not accepted for the position.
Discrimination on various grounds: religion, skin color, nationality, gender, age, social or financial status, place of residence (including presence/absence of registration), etc., except for cases where certain restrictions are established by federal laws.
Pregnancy of a woman, presence of children.
Transfer from another employer through a written invitation to a position (if 1 month has not passed since dismissal from the previous place of work).
Indication of information and characteristics about the applicant that are not related to his business qualities.

Thus, refusal of employment will be legal only if the candidate does not meet the requirements established by law (for example, in the presence of harmful working conditions, which is unacceptable for minors) or lacks the business qualities necessary to perform job duties.

Who should not be refused

According to the labor legislation of the Russian Federation, an unjustified refusal to hire a person is prohibited if:

Pregnant women and with children.
Employees invited in writing by way of transfer.
Persons elected to office.
Persons elected through a competition to fill a vacant position.
Citizens in whose favor a court decision has been made obliging them to conclude an employment contract.
Disabled people referred for employment through the job quota.
HIV-infected (an appeal is possible if the cause is a disease).
Due to the lack of registration at the place of residence.
A released trade union employee dismissed due to the end of his term of office in the trade union body.
Any person (an appeal against the decision is allowed if the response is motivated by membership or non-membership of a trade union).
Any person based on gender, nationality, religious beliefs, etc.

The given list of reasons cannot be considered final. Each case is considered by the court individually, and the outcome depends on the circumstances of the case.

Liability for unlawful refusal to hire

In accordance with Article 64 of the Labor Code of the Russian Federation, unreasonable refusal to conclude an employment contract is prohibited.

At the same time, the legislator has established a ban on any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status , age, place of residence (including the presence or absence of registration at the place of residence or stay), attitude to religion, beliefs, membership or non-belonging to public associations or any social groups, as well as other circumstances not related to the business qualities of employees .

According to paragraph 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,” the business qualities of an employee should be understood as the ability of an individual to perform a certain labor function, taking into account his existing 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 a person applying for a vacant position or work other requirements that 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 or other work (for example, knowledge of one or more foreign languages, ability to work on a computer).

Thus, the employer is not allowed to establish any other requirements or impose prohibitions on newly appointed employees.

Currently, there is a ban on the dissemination of information about available jobs or vacant positions containing information about direct or indirect restrictions on rights or the establishment of direct or indirect advantages depending on circumstances not related to the business qualities of employees (Clause 6 of Article 25 of the Law Russian Federation dated April 19, 1991 No. 1032-1 “On employment in the Russian Federation”).

07.02.2020

Prosecutor of the Leninsky district of Kemerovo

Neronov A.Yu.

How to appeal before trial

Pre-trial appeal includes 2 stages:

Complaint to employer.
Complaint to the Labor Inspectorate.

Claim

Before appealing, an unsuccessful employee has the right to request justification for the reason for non-hiring in writing; it must be provided within 7 days. If the manager neglects to respond, going to court to appeal is still permitted. The court will force a decision from him.

If justification is provided and the reason appears to the applicant to be unlawful, a claim is sent with a requirement to correct the violation voluntarily. A warning is also indicated here that you intend to appeal the received response to Rostrud and the court to protect your rights.

Complaint

If the reason is unlawful or the employer did not hire those persons who cannot be refused employment, appeal the refusal to Rostrud through the website onlineinspection.rf. Illegal refusals to hire for a position fall into the “Dismissal” category.

The text of the appeal is drawn up in free form. It is recommended to specify:

Employer details.
The circumstances, the reason he gave.
Justification for disagreement with the decision made.
Requirement to organize an inspection.

Attach evidence of the employment attempt, if any, to the appeal (a screenshot of the vacancy, a copy or photo of the employment application, a copy of the decision), or indicate that the employer refused to issue the document.

Examples of labor disputes

To be able to appeal the decision, the job applicant will have to receive a written explanation of the refusal. After receiving the document and evaluating it with the help of a lawyer, you are allowed to go to court.

It must be admitted that, as a rule, the courts often side with the employer.

Let's give examples.

CASE 1

The plaintiff indicated that he received a written offer of employment from the defendant. After resigning, he provided the employer with all the documents necessary for employment. But the defendant’s employee refused to enter into an employment contract, citing the absence of a mark on a valid deferment from military service in the citizen’s certificate submitted by the plaintiff. The plaintiff decided to file an appeal in court.
The defendant did not admit the claim. He indicated that the plaintiff was indeed sent an employment offer by way of official correspondence by email, but this does not oblige him to accept the citizen, since the HR director who sent the offer is not an official of the defendant authorized to conclude employment contracts and issue orders hiring for a position. In addition, the proposal did not contain a number of conditions that must be included in the employment contract. It did not indicate the specific place of work, its start date, working hours and rest hours, working conditions in the workplace, etc. The applicant came to the personnel service to present documents for employment. The head of the service discovered that the certificate of a citizen subject to conscription for military service did not contain a mark on deferment from military service. The applicant, after pointing out this circumstance, collected all the documents and left the personnel service premises. He did not apply for admission. There was no refusal on the part of the defendant. The parties did not discuss the terms and did not sign a contract. The applicant did not begin to perform work duties.
Refusing to satisfy the claim to establish the fact of a negative decision on employment and declaring it illegal, the court proceeded from the fact that the fact of refusal to hire and the defendant’s violation of the plaintiff’s rights had not been proven (Article 67 of the Civil Code of the Russian Federation).

CASE 2

One more example. The applicant indicated that the defendant posted information on the Internet about the vacancy of a chief accountant. The applicant responded to it through the website hh.ru. In response, he was sent an invitation for an interview. Based on the results of the interview, the plaintiff was informed that he had passed the initial selection and was offered to talk with the head of the department. The plaintiff was asked to undergo another interview with the CFO. The plaintiff filled out a personal HR record sheet in his name and sent it by email to the HR manager. But later he was refused. The applicant sent a letter asking for a written explanation of the reason for the refusal. In response to the refusal to hire, the defendant indicated that due to the current economic circumstances, the planned expansion of the organization was suspended, and there was no longer a need to recruit new employees. There are no corresponding positions in the staffing table. The applicant considered the refusal to be unfounded and illegal, filing an appeal, asking for it to be canceled and to recover compensation for moral damage from the defendant.
Resolving the dispute, taking into account the established circumstances based on the plaintiff’s explanations and the evidence presented, the court came to the conclusion that there were no grounds for satisfying the plaintiff’s demands. The court explained that the final decision on concluding contracts is made by the manager, taking into account, among other things, the economic situation. And in labor legislation there are no rules obliging to fill vacant positions immediately as they arise.
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In checking the plaintiff’s arguments in appealing the groundlessness of the refusal, the court proceeded from the fact that there was no evidence confirming the reasons for the refusal to hire, not related to the plaintiff’s business qualities.

Appealing an unreasonable refusal to hire

Lawyer Gorobets Igor Yurievich

Call now and get a preliminary consultation:

8-912-343-72-22 8

On the merits of the question asked, we report the following.

In accordance with the Supreme Court of the Russian Federation, in its Resolution of the Plenum of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” formulated its position on this issue as follows.

When considering disputes related to refusal to hire, it is necessary to keep in mind that labor is free and everyone has the right to freely dispose of their abilities to work, choose their type of activity and profession, and also have equal opportunities when concluding an employment contract without any discrimination, i.e. any direct or indirect restriction of rights or establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence ( including the presence or absence of registration at the place of residence or stay), as well as other circumstances not related to the business qualities of employees, except for cases provided for by federal law (Articles 19, 37 of the Constitution of the Russian Federation, Articles 2, 3, 64 of the Code, Article 1 of the ILO Convention No. 111 of 1958 on discrimination in the field of employment and occupation, ratified by the Decree of the Presidium of the Supreme Soviet of the USSR of January 31, 1961).

Meanwhile, when considering cases of this category, in order to optimally reconcile 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 Article 8, part 1 of Article 34, parts 1 and 2 of Article 35 of the Constitution of the Russian Federation and paragraph of the second part of the first article 22 of the Code, 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, but not the obligation of the employer , and also that the Code does not contain rules obliging the employer to fill vacant positions or jobs immediately as they arise, it is necessary to check whether the employer made an offer about the vacancies available to him (for example, a message about vacancies was transmitted to the employment service authorities, placed in newspaper, announced on the radio, announced during speeches before graduates of educational institutions, posted on the bulletin board), whether negotiations on employment were held with this person and on what grounds he was denied an employment contract.

It is necessary to take into account that it is prohibited to refuse to conclude an employment contract due to circumstances of a discriminatory nature, including to women for reasons related to pregnancy or the presence of children (parts two and three of Article 64 of the Code); employees invited in writing to work by way of transfer from another employer, within one month from the date of dismissal from their previous place of work (part four of Article 64 of the Code).

Since the current legislation contains only an approximate list of reasons why an employer does not have the right to refuse to hire a job seeker, the question of whether discrimination occurred when refusing to conclude an employment contract is decided by the court when considering a specific case.

If the court finds that the employer refused to hire due to circumstances related to the business qualities of the employee, such refusal is justified.

The business qualities of an employee should, in particular, be understood as the ability of an individual to perform a certain job function, taking into account the professional qualifications he has (for example, the presence of a certain profession, specialty, qualifications), the personal qualities of the employee (for example, health status, the presence of a certain level of education, work experience in a given specialty, in a given industry).

For a more detailed answer to the questions asked, you need to familiarize yourself with the documents. We recommend that you seek advice from the reception office of lawyer Sergei Sergeevich Ivlev at the address: Orenburg, st. Shevchenko 20B, office 414, tel.: 8-912-343-72-22.

Attention! The information provided in the article is current at the time of publication.