Transfer of an employee to another position or organization at the initiative of the employer. How notification and other documents are prepared.

Dynamically developing modern technologies, discoveries in science and technology oblige company owners to react quickly and flexibly to market conditions. It is not surprising that this approach is also reflected in employees performing work functions for such employers.

We propose to consider the features of moving employees to other positions, the legal aspects of this phenomenon, the sequence of actions of the employer, notice of transfer and other types of documents that need to be drawn up.

What does transfer to another job mean?

It should be noted that transfer to another job is a change in the functions specified in the employment contract. It can be temporary or permanent. Depending on the type of translation, the order of its execution will change. Conventionally, this type of translation can be divided into several groups:

Remember, every case of a change in working conditions, workplace, position, or level of pay requires the implementation of certain actions on the part of both the worker and his employer. Violation of the procedure may result in the cancellation of decisions made.

General overview

Any issues related to the positions, responsibilities, and rights of employees of any organization relate to labor law, in this case, to the labor law of the Russian Federation. Therefore, most explanations, as expected, are given with reference to this legal act.

The first thing you need to know is that in labor law there is no such thing as “transfer to another position.” Jurisprudence uses the phrase “transfer to another job,” and it first appears in Article 72.1 - it says that this represents a transformation of the work activity of the worker and (or) the structural unit where the worker functions, while the employer remains the same. Of course, such an initiative of a superior person in relation to a subordinate is allowed only with the consent of the latter, although this is not the case in all situations; exceptions include various types of disasters, emergencies, epidemics, as well as economic and other needs of the company, but such transfers are allowed only for a month as temporary measures. A rather funny moment is the fact of the employee’s refusal to change positions, or, more precisely, its consequences. That is, of course, if the transfer is not urgent and requires consent, then the worker has the right to refuse. But, most likely, this will end with the employee being fired from his place of work for quite understandable reasons - for example, if the company has moved to another city, and those who want to stay in the same place also turn their nose up at the convenient conditions offered to them, then it will be easier for the employer to remove an inconvenient character and take another one in his place. There are quite a lot of such situations and the question arises - why then do the employee’s consent at all, if almost all changes in job position arise out of serious necessity?

There are also a number of restrictions that prevent the free movement of an employee between job positions:

• if a new job is contraindicated for health reasons;

• if the employee does not have the required skills;

• if the employee does not agree, and the month allowed in such cases has already expired;

However, in the last two cases, the possibility of dismissal and, as a consequence, termination of the employment contract is even provided for. But before finally getting rid of someone, the employer must offer his worker any other vacancies that meet all the requirements and conditions, and are also located in the same area as the previous “place of work”. Making offers for vacancies in other locations is permitted only when this is regulated by the terms of the employment contract.

A characteristic feature of this issue is the fact that, at the request of the worker, the termination of the employment contract is carried out, which, on the one hand, is logical, since conditions change, but on the other hand, not, so the person remains in the same job with the same management , which is equivalent to promotion.

For the most part, the need to transfer an employee to another position is a unilateral desire of the employer, which can be provoked by a variety of pretexts: staff reduction, financial difficulties of the company, reform of the organization of activities, and much more. Therefore, the burden of creating and implementing such a procedure lies on the shoulders of the top of the company.

We should also not forget that, at its core, this event is a change in the terms of the employment contract, so this must be taken with the same seriousness. The sooner and in more detail the employer draws up a notice of transfer, the faster and better the employee will reorganize his activities, schedule, etc. Article 220, symbolically located in the chapter “organization of labor protection,” says that in order to ensure safety in the event of a forced suspension or prohibition of activities, an employee with his consent should move to another position. If all this happens not through his fault or desire, then his place and position at work, as well as the level of wages, are preserved, but for the duration of the performance of new job duties, a new standard of wages is established for him, which should not be lower than the average earnings under the previous conditions.

Transfer within an organization or to another organization

External and internal types of transfers differ significantly from each other in terms of the registration procedure. It is important to note that within an organization there may be two types of changes in an employee’s job functions:

Moving. When the employee's consent is not required. The employer simply issues an order that is binding. Failure to comply is regarded as a violation of labor discipline, for which disciplinary liability occurs. As a rule, in such cases, the title of the position and the terms of the employment contract do not change.

Translation. Involves obtaining the employee's consent. Concerns changes to the terms of his employment contract. These may be additional functions, the need to work in a different area, changes in payment terms, or job titles. The employee must be notified of this type of change in working conditions at least 2 months in advance. Any measures can only be taken after this period.

Is the employee required to agree?

The provisions of the Labor Code define situations in which it is permissible not to obtain consent from employees for a transfer. This list has a closed meaning, which means that it is impossible to include other items in it. The list is presented:

• the occurrence of a natural disaster;
• industrial accident;
• accidents;
• situations that resulted in a danger to the life or health of citizens.

If we talk about situations when a transfer is carried out on the basis of production necessity without obtaining consent, then this refers to downtime or preventing the property of the enterprise from being lost or damaged. The reason may also be the replacement of one person by another.

These measures can be taken if they arose due to an emergency. Regardless of which specified option will be used for the transfer, it is permissible to transfer a citizen from the same employer for a period not exceeding a month without consent. In this case, management explains this need by:

• prevent the formation of an emergency;
• overcome the resulting consequences.

The management of the enterprise must take into account that a transfer without the consent of the employee cannot be dictated by problems with equipment or delays in the provision of materials and other similar reasons. This indicates that translation in the above situations can only be realized if a compromise is reached between the parties to the working relationship. If this fails, the employee cannot be hired.

If difficult conditions arise at the enterprise that an employee does not want to agree with, his behavior is assessed as a disciplinary offense. Absenteeism to work is considered absenteeism. This rule provides for some exceptions.

In particular, a citizen will not be punished if he refuses to work in conditions that pose a real danger to him. These conditions are directly related to violation of the conditions of organization and labor protection.

The procedure for transferring an employee to another job

Changing an employee’s working conditions is usually carried out at the initiative of one of the parties. As a rule, if the employee takes the initiative, the procedure is quite simple. The administration simply accepts his application and grants his request. The transfer is carried out from the date specified in the application. You just need an order from the employer, without any additional procedures.

It is more difficult if the initiative comes from the employer, but the employee does not agree with it. This is usually possible in the following situations:

• an employee needs to be demoted due to poor performance or failure of certification results;
• there has been a change in the company's approved organizational structure;
• it is necessary to reduce personnel (staff);
• it is required to transfer an employee for further work in one of the regional branches of the company;
• a temporary vacancy has appeared, which they are trying to fill with one of the current employees with a lesser functional load.

Considering that if an employee agrees to the employer’s proposal and supports such agreement with a written statement, the procedure is significantly simplified. Therefore, we will consider the sequence of actions when a worker refuses to voluntarily switch to new working conditions.

The procedure will be as follows:

1. Based on an analysis of the current situation, the employer issues an order to the company to transfer the employee to another job. There must be at least 2 months from the date of issue of the order to the day of the actual transfer. The document should be familiarized to those involved against signature.
2. The employee is sent a personal written notice of future changes in his working conditions and the employer’s proposals for further work. Additionally, it is advisable to offer available vacancies that correspond to the level of his qualifications.
3. After the expiration of the two-month period, in case of refusal of further working conditions proposed in the notification, the employee can be dismissed as someone who refused to work under the new conditions.
4. If consent is received, then it is formalized by a statement (from the employee) and an order (from the administration).

Remember, there must be valid reasons for forcibly transferring an employee to another position. Otherwise, such actions can be appealed, reinstated in the previous position and received compensation for the entire period of work in the new status.

How is the translation carried out?

The Labor Code stipulates that notification must be sent within the established time frame. The minimum period before making adjustments is a couple of months. If the report is sent later, this is considered a violation of the law. There are several ways to send a notification:

• referral via postal services;
• personal delivery.

In the first case, you will need to use a return receipt and registered letter type. The employee must sign the notice. A situation may arise that a person refuses. Then you will need to create an appropriate act. Subsequently, it can be used as evidence that all the conditions reflected in the law are met.

If a person refuses to transfer, the manager must inform him about the availability of other vacant positions and offer to take them. Provided that the citizen refuses this option, termination of the relationship is allowed. If consent is received, then all necessary documentation is adjusted.

In particular, this applies to the employment agreement and the employee’s personal papers. Including personal file and agreement. The manager issues an order and the person has the right to go to work in a new position

Is it necessary to obtain the employee’s consent for a transfer?

The interaction between the administration and the employee regarding changes in working conditions comes down to two areas:

1. When obtaining the worker's consent is not required . This option is only possible if you have to perform work under a previously concluded employment contract within the area where the base office is located. Here, an order from the manager is sufficient, to which the employee is introduced upon signature. Failure to comply with an order is a disciplinary offense with all the ensuing consequences.
2. The need to obtain employee consent . Any initiative of the administration related to the need to change the initial terms of the employment contract, level of remuneration, job title, functions, even if such a proposal is based on a medical report, must be accompanied by obtaining the consent of the employee. The absence of such a document means the employee’s refusal of the employer’s offer. Further actions will depend on the situation. For example, an ordinary worker can be fired after a two-month period. In the case of a pregnant worker, the employer will have to look for other compromise options.

Remember, obtaining consent depends on the situation and further conditions for performing work functions. If they do not change, then consent is not required.

Notifying the employee about the transfer

An employee’s working conditions can only be changed with his written consent (oral agreements do not count), which is why at a certain stage, obtaining a positive response from a subordinate becomes the employer’s main task. A written notice of transfer serves precisely this purpose. The preparation of a document called “Employee Notification of Transfer” occurs when the employer unilaterally decides to transfer an employee from one position to another, from one organization to another, or to a lower rate. Such actions can be caused by a variety of circumstances: staff reduction, financial problems of the company, inconsistency of a subordinate with the previous workplace, promotion, etc.

Rules for drawing up a notification

The legislation does not provide for any standard template for drawing up a notice of changes in significant working conditions. At the same time, based on judicial practice, as well as the requirements of labor legislation, some basic points are highlighted that should be present in the notification.

These include:

1. Company name. Her legal address. Usually all this is indicated in the header of the standard enterprise form (side stamp).
2. Date of signing. Additionally, it is advisable to add to this the registration number in personnel records. This shows that the document is real and was not created “retroactively.”
3. Full name and position of the employee to whom the notification is addressed. The title of the document must be indicated.
4. Notification text. It is written in any form, but must necessarily have a reference to the basis (order of the employer), the reason for the upcoming changes, as well as a specific proposal for a way out of the current situation. Alternatively, this could be a change in position, salary, or direct place of work.
5. Position, signature and transcript of the signature of the official authorized to sign such documents.

Who writes the notice?

In a company, both the HR department and the manager can draw up a notice.
The process of drawing up the document in question is carried out by employees of the HR department. This can also be done by:

• lawyer;
• secretary;
• head of the company.

Regardless of who draws up the act, the person must have the skills to draw up such documents. In addition, the head of the enterprise must sign the notice. Another employee may be given the right to sign.

Transfer of an employee to another position (working conditions)

Now let’s look at the procedure for registering the employee’s agreement with the employer’s proposal. Signing a notice of transfer to another position (working conditions) does not mean that the employee will no longer need to do anything.

Then the work of the personnel department begins. It consists of the following actions:

1. The employee is called to the HR department, where he is asked to write an application for transfer to another position (providing consent to change the existing working conditions).
2. The personnel department prepares an order from the manager and, at the same time, a new employment contract (addition to the existing one). The citizen is required to sign the prepared labor agreements, after which they, together with the order, are submitted to the employer for signature.
3. The worker gets acquainted with the signed orders by signature. One original copy of the employment contract (addition to it) is given to the worker.
4. You must begin new duties on the date indicated in the order.

Remember, without a written application from the employee, the procedure for registering a transfer (changing existing working conditions) will not be carried out.

What unit can they offer?

When selecting a new workplace, you should pay attention to the following existing rules:

• The vacancy must be with the same income level.
• It is necessary that the position corresponds to the qualifications and education of the worker.
• If there is no such vacancy, you need to find a lower position.
• A new vacancy may also be less paid if there are no others in the organization.
• Positions are offered only within the employee's region of residence.
• If the position is of a higher level, but is located in another locality, the employer is not obliged to offer it to the reduced person. An exception may be reverse data that is specified in a collective agreement concluded earlier.

A person who has held a leadership position at an enterprise for a long time and has been laid off may well receive an offer to work as a janitor or cleaner in the same organization.

However, if a similar managerial position is empty in a neighboring department of the company, and the manager does not offer it to the employee, then the latter has the right to appeal to a judicial authority to protect his rights.

Important! The employer has no right to offer vacancies that contradict the employee’s medical conditions.

The employer must warn persons who have been laid off no later than two months before the procedure. This point is regulated by Article 180 of the Labor Code of the Russian Federation.

The warning must be issued in writing in two copies. One of them is issued to the laid-off employee, and the second is transferred for storage to the HR department.

The notification must indicate the date the document was generated. Instead of layoffs, the employer may offer the employee work on a part-time or weekly basis. If the worker does not agree, management will decide to dismiss him due to the reduction.

Employers must be aware that there are certain categories of employees who cannot simply be dismissed due to a reduction in numbers and staff. You can find out more about this in the following publications:

• Who cannot be fired due to staff reduction?
• The nuances of dismissal of pensioners due to reduction.
• How to properly dismiss a redundant employee after sick leave?
• Which employees retain priority right to work in case of staff reduction?

Temporary transfer of an employee to a higher position

Career growth is the place for every worker. But a temporary increase does not mean that the employer has already made a final decision. At the same time, an increase in the amount of work, as well as responsibility, does not always please a potential candidate for such a temporary position. Therefore, to avoid misunderstandings, it is advisable to follow the procedure here too. It will be as follows:

1. The employee is provided with written notice of the possibility of temporarily performing duties in a higher position.
2. The potential candidate writes a statement confirming his agreement to temporarily perform a larger volume of work for a higher position.
3. The employer issues an order temporarily assigning leadership responsibilities to the employee.
4. After the employer finds a permanent candidate, or the worker decides to refuse this job, a new order from the employer is issued, according to which everything returns to its original position.

Writing an application and the procedure for transferring to another position

Sometimes an employee does not have the opportunity to interrupt her leave to care for a newborn or work part-time shifts . The employer has no right to force her to interrupt her vacation. You can complete the required documents by sending a courier to the employee. Lawyers also strongly recommend that the woman be familiarized with the new instructions for her position so that additional or changed work responsibilities do not come as a surprise to her. This should be done before the agreement between the parties is signed. Situations cannot be excluded when the approved period has come to an end, but the person does not want to return to the previous position . If the subordinate is satisfied with everything, but there are no objective reasons to return him (for example, the employee being replaced decided to quit), the temporary transfer agreement becomes permanent. To avoid legal misunderstandings, it is better to record such changes in an additional agreement to the employment contract . On its basis, the boss issues an order in free form, containing a statement of the fact that the temporary transfer is now considered permanent. also need to make an entry in the labor record .

Notification of transfer to another place of work sample

And even before the start of the legal procedure, the employee and the director of the organization should discuss everything in detail. Documentation The entire procedure for transferring an employee can be divided into several stages. According to the Labor Code of the Russian Federation, the transfer of an employee to another position at the initiative of the employer begins with the issuance of a local act, for example, an order or notification. In addition, if an employee informs in advance that he is not interested in the employer’s offer and prefers to quit, the latter also gets some time to search for a replacement for the employee. What does transfer mean? The transfer of an employee is always accompanied by changes in the staffing table and in the terms of the previously signed employment contract. Moreover, as regards the contract, adjustments can occur not only in the title of the position, but also in the standard working hours, work hours, wages, etc.

Types of translation

As already noted, the procedure is carried out on a temporary and permanent basis. In this case, a change of position for a couple of weeks will also be considered a move. The employer must take this into account and ensure that the documents are completed correctly. The legislation requires compliance with the following conditions regarding the process in question:

• the deadline for temporary transfer cannot exceed one year;
• if the period in the new place exceeds one month, then it is necessary to request written consent from the subordinate.

The employee and the employer enter into an additional agreement establishing a specific period for the transfer and the payment that will be charged to the citizen for carrying out the activity. In this case, a new contract is not drawn up, and no entry is made in the work book.

Expert commentary

Potapova Svetlana

Lawyer

The employee himself has the right to initiate permanent relocation. To do this, the subordinate needs to wait until a suitable position becomes available in the organization and submit an application to management. The decision to transfer is made by management.

A forced change of functionality is performed in the following situations:

• the employee does not meet the requirements for the position;
• another person who previously lost his position due to an illegal decision of the manager is reinstated to the position;
• expiration or suspension of licenses, permits, driver's licenses or other documents required by the employee to carry out activities in accordance with job regulations;
• disqualification of an employee (punishment of a specialist under the Administrative Code).

In the above situations, a permanent transfer is carried out using a similar or reduced rate. A higher position is offered only at the discretion of the employer. If the employment is permanent, a corresponding entry must be made in the work book.

What are the grounds for transfer?

Redistribution of staff within a company occurs for several main reasons. At the initiative of the employee, this procedure is carried out with the aim of finding a vacant position that was vacated by another specialist. In addition, a citizen may acquire a disease that will not allow him to perform his previous functions.

If the reshuffle is carried out at the initiative of the employer, then the most likely motives are:

• by necessity;
• reduction in the number of positions and staff;
• unsatisfactory employee performance during certification.

Expert commentary

Kamensky Yuri

Lawyer

Any reason must be agreed upon by the parties. The employee must understand exactly why the change is happening. Most often, the issue is resolved by agreement between the subordinate and the manager.